Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits. The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.
May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?” Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?” If not,… More