Letter to Gina McCarthy, Administrator of the Environmental Protection Agency - Adverse Comments on EPA's Administrative Wage Garnishment Direct Final Rule

Letter

Dear Administrator McCarthy,

We recently learned of the Environmental Protection Agency's (EPA) direct final rule on administrative wage garnishment. The direct final rule purports to allow EPA to garnish--without first obtaining a court order--personal wages for the collection of non-tax debts owed to the government. We believe the direct rule represents an inappropriate effort to avoid preliminary judicial scrutiny of EPA garnishment proceedings. Through this comment letter, we delineate a clear adverse position and request that EPA withdraw its direct final rule.

EPA announced its direct final rule on administrative wage garnishment on July 2, 2014.[1] According to EPA, the direct final rule implements the Debt Collection Improvement Act of 1996 (DCIA), which governs procedures for the administrative garnishment of personal wages.[2] EPA states that "[p]rior to the enactment of the DCIA, Federal agencies were required to obtain a court judgment before garnishing non-Federal wages," and that the direct final rule "will allow the EPA to garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order."[3]

While we recognize the government's legitimate interest in efficiently and effectively pursuing delinquent debt, EPA's new wage garnishment procedures provide an agency prone to regulatory abuses with even more power over individual Americans. For example, under the direct final rule, EPA will decide for itself whether or not a debtor is entitled to present an oral defense before the agency; EPA need only determine that a garnishment dispute can be resolved by review of the documentary evidence in order to prevent the debtor from making his case orally.[4] Likewise, the direct final rule authorizes EPA to unilaterally choose a hearing officer for a garnishment hearing without input from the debtor, and regardless of whether the officer is an administrative law judge.[5]

Thus, EPA has removed initial administrative garnishment proceedings from a neutral court setting to a non-judicial process dictated by the agency. EPA's decision to give itself the authority to garnish wages without first obtaining a court order compounds the challenge for individuals who face threats of ruinous fines from the agency. We note in particular the case of West Virginia farmer Lois Alt, whom EPA threatened with civil penalties of up to $37,500 per day because stormwater which flowed across her property and into a "water of the United States" had come into contact with dust, feathers, and small amounts of manure located on the ground.[6] We are mindful as well of EPA's January 2014 compliance order for Andy Johnson of Uinta County, Wyoming. The terms of the compliance order suggest that EPA is threatening Mr. Johnson with fines of as much as $187,500 per day for building a pond on his private property.[7] We question whether EPA's newfound authority to garnish wages without first obtaining a court order is in fact a ploy to make people like Ms. Alt and Mr. Johnson think twice before challenging the agency over its regulatory jurisdiction. Moreover, we are extremely concerned that a precipitous garnishment of wages by EPA without a court order could instantly crush an individual or family.

Finally, EPA's decision to grant itself more power over private citizens is unwarranted given the agency's repeated failure to manage its own personnel. The bizarre tale of John Beale and other recent accounts of EPA employee misconduct demonstrate that wasted taxpayer resources and mismanagement permeate the agency.[8] It would seem to make little sense for EPA to have the authority to garnish wages of private citizens without a court order, when the agency is apparently unable to properly oversee wage payments to its own employees or otherwise restrict the distribution of unearned pension benefits.[9] Congress and the American people need to be assured that EPA's internal management issues are resolved before any consideration of such authority.

The direct final rule indicated that if EPA receives adverse comments by August 1, 2014, "it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect."[10] Based on the adverse comments discussed above, and pursuant to the EPA's commitment, we ask that EPA withdraw its direct final rule on administrative wage garnishment immediately.

Sincerely,

David Vitter
United States Senate

Mike Enzi
United States Senate

John Barrasso, M.D.
United States Senate

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