September 2, 2014
United States Environmental Protection Agency
OCFO-2014-0001; FRL-9910-13-OFCO, FPPS
Co/ Anita Jones, OCFO/OFM/FPPS
1300 Pennsylvania Avenue, NW
Washington, DC 20460
Re: FRL-9910-13-OFCO; Administrative Wage Garnishment
On behalf of the 6,000 members of the American Road and Transportation Builders Association
(ARTBA), I respectfully offer comments on the U.S. Environmental Protection Agency’s (EPA)
proposed rule concerning Administrative Wage Garnishment (AWG).
ARTBA’s membership includes private and public sector members that plan, design, construct
and maintain the nation’s roadways, waterways, bridges, ports, airports, rail and transit systems.
Our industry generates more than $380 billion annually in U.S. economic activity and sustains
more than 3.3 million American jobs.
ARTBA members undertake a variety of activities that are subject to multiple regulatory
programs administered by the EPA in the normal course of their business operations. ARTBA’s
public sector members adopt, approve, or fund transportation plans, programs, or projects.
ARTBA’s private sector members plan, design, construct and provide supplies for these federal
transportation improvement projects. This document represents the collective views of our 6,000
member companies and organizations.
EPA’s proposal properly acknowledges Congress has directed all federal agencies to adopt
regulations authorizing the use of AWG to collect unpaid, non-tax owed debt to the federal
government in the Debt Collection Improvement Act of 1996 (DCIA). Further, DCIA allows for
AWG without obtaining any sort of court order beforehand.
While ARTBA acknowledges that willful violations of environmental laws should be punished
in an appropriate manner, we have significant reservations with EPA’s proposed AWG rule. In
order for AWG to be applied in a just and fair manner, the intent of the individual being targeted
must be taken into account. If AWG is to be used, it should only be in instances where there was
bad faith and the individual who is subject to wage garnishment has been found specifically
responsible for the violation at issue by a state or federal court beforehand.
The issue of intent is especially important for transportation projects which can take years, if not
more than a decade, to complete. Over time, conditions can change where areas not requiring
permits at the beginning of a project become jurisdictional over time. Further, contractors
working on a transportation project rely on the information they are provided from project
owners (frequently state departments of transportation) in determining where to perform
construction activities. If this information is out of date or incorrect, a contractor could violate a
regulation (for example concerning wetlands or stormwater) without intending to commit any
sort of violation. In such no-fault instances, an individual should not be held liable, much less
have their wages garnished. To avoid applying AWG to individuals who did not intend to
commit a violation, ARTBA suggests barring the use of AWG where project conditions change
after a project has been advertised and/or put out to bid until all parties involved in project
construction have been notified of such changes.
The possible use of AWG is further complicated by recent efforts by EPA to expand its
jurisdiction under the Clean Water Act (CWA). Currently, EPA is also taking comments on a
proposed rule that would greatly expand the agency’s reach under the CWA. Should EPA’s
CWA jurisdiction proposal be enacted, areas which were not federally jurisdictional at the
beginning of a project could become subject to CWA regulations. In such a case, construction
activities performed lawfully on one day could be violations the next. Further, EPA has also had
its right to retroactively veto valid CWA permits upheld in federal court. Thus a situation can
now arise where work being done under a valid permit could be considered a violation of the
CWA if that permit is revoked. Retroactive application of AWG would be inappropriate in these
evolving scenarios. EPA should instead wait until all parties have been notified of either
changes to the status of a permit or the scope of federal regulations before considering the use of
As EPA proceeds with developing AWG regulations, recent concerns about the scope of the
agency’s jurisdiction should be considered. Specifically, two recent Supreme Court decisions
(Rapanos and Sackett) have concluded EPA’s views of its regulatory powers are greater than
provided for under federal law. ARTBA is also concerned that the aforementioned proposed rule
on CWA jurisdiction represents a continuation of this flawed view of federal power. Any final
AWG regulations should conform to the holdings of Rapanos and Sackett.
Finally, ARTBA would also note that under DCIA, AWG is a tool to deal with individuals—not
corporations. EPA cannot, and should not, use AWG to hold individuals responsible for the
actions of their employers unless federal corporate law explicitly allows such an extreme
ARTBA appreciates EPA taking comments on this controversial issue and urges EPA to
carefully reconsider its decision to propose AWG regulations. Should EPA continue this
process, it must make absolutely sure AWG is used rarely and only in cases where individuals
have been found to willfully and intentionally violate the law.
T. Peter Ruane
President & C.E.O