The Pennsylvania Department of Environmental Protection (“DEP”), as is typical of government agencies, regularly releases guidance documents explaining how to interpret or apply its programs and regulations. Once drafted and again once finalized, these documents are published in DEP’s Online Library, where they can be accessed through browser searches or directly through the eLibrary. But what do you do when you can’t find a particular guidance document you’re pretty sure exists? A colleague or consultant may ask you to clarify a technical point and refer to a document by name or description, or you may need to verify the proper procedure for a risk assessment; your next step is to perform a browser search or check the applicable folder in DEP’s eLibrary. With any luck, the document is easily found, but some searches result in no returns or broken links. DEP’s website sometimes contains draft guidance documents, but no final version.
DEP’s guidance documents serve as useful tools in understanding the Department’s regulations. They can provide insight regarding the appropriate procedures for completing testing or remediation of a site, or submitting required paperwork or reports to the Department. Guidance documents are often helpful in the resolution of legal disputes, providing answers to questions left open by regulations. In many cases, these documents serve as key documents in completing a project or wrapping up a matter. In some cases, however, diligent searches for particular guidance prove fruitless. This may mean the desired document has been rescinded.
The DEP’s Policy for Development and Publication of Technical Guidance sets out the procedures for its development of guidance documents; these procedures also govern the rescission of such guidance. When developing technical guidance, DEP staff must first draft the guidance document for several levels of internal review and approval. After approval of a draft guidance document by the Department’s Policy Office, the draft, including a request for public comment, is published in the eLibrary and in the Pennsylvania Bulletin. At the conclusion of the public comment period, DEP staff reviews any comments received. Subject to Policy Office review, the final guidance document is then published in the eLibrary and the PA Bulletin.
If a DEP Bureau Director determines that an existing guidance document is no longer necessary, that guidance document can be rescinded. Similar procedures for developing guidance are followed, with one significant difference—the rescission process lacks a notice and comment period. Upon deciding to rescind a guidance document, the Bureau Director must submit a Notice of Intent to Rescind Guidance to DEP’s Policy Office. This Notice consists of a short memo identifying the guidance intended for rescission and describing why rescission is sought and the effects rescission will have. This Notice must be published in the PA Bulletin. After receiving Policy Office approval of an intended rescission, the Bureau Director shall publish a Notice of Rescission in the PA Bulletin. This Notice is very brief, identifying the guidance document’s DEP ID Number, title, description, and effective date. The rescinded guidance document is then removed from DEP’s eLibrary with little fanfare. When searching for a DEP guidance document you believe may have been rescinded, therefore, checking the PA Bulletin may provide verification or lead you to replacement guidance, alleviating the need for and frustration of repeated searching.