Today, U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, and U.S. Sen. Chuck Grassley (R-Iowa) made the following statements regarding the U.S. Environmental Protection Agency's (EPA) decision not to seek Supreme Court review of an appellate court ruling that invalidated new Agency wastewater treatment regulations. EPA had revealed in correspondence with Grassley that it had been enforcing a new interpretation regarding the blending of partially and fully treated wastewater at the municipality level that was not part of the EPA's existing regulations and had not gone through proper rule-making procedures. Vitter and Grassley challenged the EPA on such a controversial practice earlier this year.
"I'd call this a modest win for municipalities across the country, reaffirming that EPA can't sneak in a burdensome, new water treatment regulation whenever they want to. This isn't the first time EPA has gotten creative to avoid transparency and established procedure to affect policy changes, and I don't expect it'll be the last," said Vitter. "I urge the EPA to unambiguously and fairly apply the invalidation of this illegal water treatment regulation on a national level."
"EPA said in its court petition that subjecting agency letters to Administrative Procedure Act review would create a "chilling effect' that would hurt EPA's ability to answer requests about its interpretation of laws and regulations. This misses the point," Grassley said. "The court found that the EPA was improperly enforcing an interpretation of the law that was contrary to its published regulations, which is a violation of the Administrative Procedure Act. The fact that the EPA said as much in writing to me simply brought this violation to light. The solution is not to stop telling Congress what it's up to, but to stop using interpretations that have not gone through the proper rulemaking procedures. EPA should learn its lesson and follow the procedures in law meant to keep the agency accountable to the public and Congress."
In March 2013, the U.S. Court of Appeals for the 8th Circuit decided to invalidate new wastewater regulations disguised as guidance letters. EPA had attempted to explain their letters as a new interpretation of existing rules, but the three-judge panel decided that EPA changed its policy without notice and comment, as required by law.
Vitter and Grassley sent a letter in June to the EPA expressing their concern of how the Agency was moving forward with regulations on the wastewater treatment processes, following the 8th Circuit decision saying they cannot circumvent the Administrative Procedure Act