Wasting Away: The Attack on EPA Authority to Regulate Beverage Containers Used at Federal Facilities

Introduction: EPA Agonistes

Obliged to enforce myriad laws which lack built-in incentives to compliance, buffeted by literally hundreds of conflicting lawsuits, whipsawed by a congressional combination of strict legislative deadlines and skimpy budgets, and straitjacketed by OMB overseers, the Environmental Protection Agency must be the most beleaguered administrative agency in American history.¹

As if further to compound EPA's troubles, courts have recently begun to strip the agency of its powers under existing law by narrow judicial construction. For instance, the agency's attempts to pressure states into helping with the massive job of enforcing the Clean Air Act have recently been invalidated by two courts of appeals.²

The charge that EPA lacks legal authority to do what it sets out to do is now being taken up by a combine of industry groups and federal agencies bent on scuttling the agency's recently-drafted proposals for establishing a mandatory deposit on soft-drink and beer containers sold on federal facilities. Generally, the draft guidelines would require exaction of a minimum five-cent returnable deposit on all carbonated beverage containers sold at such federal installations as military bases, national parks and public works projects. These proposals, not yet officially published in the Federal Register, were themselves slow to appear due to potential regulatee opposition. Although authorized by a 1970 statutory mandate,³ the guidelines were issued only under the pressure of litigation, a suit filed by environmental groups in 1974 to force EPA to obey the statutory mandate to promulgate "as soon as possible" guidelines on "solid waste recovery, collection, separation and disposal systems,"⁴ which guidelines would become binding on federal facilities upon publication in the Federal Register.⁵

A Two-Pronged Attack

Both government and affected industry groups challenged EPA's authority to promulgate the rules. The Defense Department, Commerce Department and Tennessee Valley Authority registered their opposition in the internal federal agency review process early in 1975. Soon the beverage industry obtained a draft copy of the proposals, and the United States Brewers Association joined the fray.

By February, the Defense Department had succeeded in getting the agency review process halted pending a reexamination of EPA authority under the statute by EPA's Office of General Counsel. While the beverage container deposit rules survived this review, a companion set of draft guidelines, mandating federal agency procurement of recycled products, succumbed to an EPA conclusion that § 209 did not empower it to issue such far-reaching rules.

Meanwhile, on the private front, the Brewers Association counsel had prepared a memorandum challenging the beverage container guidelines' legal basis. This the Defense Department followed up with a second salvo, August comments challenging both EPA authority and the merits of the proposals. These objections were echoed in substance in contemporaneous Commerce Department and TVA submissions. A final Defense Department brief, amplifying its doubts about the legal authority for the rules, appeared in September.

During the summer, industry members also registered objections with Congress, a tactic which proved ultimately counterproductive; when Senator Taft bucked one constituent's questions about EPA's legal basis for the guidelines to the Justice Department, Justice came back with a brief opinion supporting EPA.

The Merits: Semantic Wasteland

Scrutiny of the statutory provisions involved reveals a complex semantic muddle, full of those ambiguities which fuel lawyers' arguments; predictably, both sides have plausible linguistic analyses. When the rather sketchy legislative history is added, the EPA's view is reinforced a bit. And, as fruit of the agency responsible for administering the relevant statute, EPA's interpretation should prevail under settled principles of administrative law. Whether the courts will show the agency such traditional deference is, of course, a different matter in light of the recent developments referred to earlier.

[5 ELR 10198]

The issue is whether the guidelines fall within the EPA's § 209 authority to promulgate "guidelines for solid waste recovery, collection, separation, and disposal systems…." Among the challengers, the industry counsel had the weakest argument. It erroneously characterized the guidelines as banning certain kinds of beverage containers (disposable cans). In fact, the rules carefully avoid prohibiting any type of container; all they require, as EPA pointed out in response, is that deposits be assessed and refunded upon the return of any container (except open cups, which are excluded). Of course, in practice, a deposit system would probably result in a sharp decrease in the number of cans andthin-walled bottles,⁶ but the guidelines do not require this.

The Defense Department's theories were better crafted. Its initial memo argued that the "systems" which EPA can recommend are limited to those which involve treating items after they become "solid wastes," which § 203(4) of the Act defines as "garbage, refuse and other discarded solid materials…." Since the EPA guidelines extend to salable items, beverage containers before they are discarded, the argument was that they go beyond the authority conferred by § 209.

EPA responded to this semantic parsing by adopting a functional analysis. The statute, it asserted, authorizes guidelines respecting any significant aspect of the solid waste management problem; this naturally includes the power to reach solid waste inputs before they join the solid waste stream, especially where the items in question, beverage containers, loom so large in the solid waste picture. The Justice Department, in support of EPA, contented itself with asserting that a beverage container deposit system is "obviously" one of the systems authorized by § 209.

In short, what EPA claims and its opponents deny is the power to reach beverage containers in that brief gray period, after purchase by the consumer, when they are destined only to be discarded … or returned.

The Defense Department's final brief contains a stronger semantic argument. Noting that one section of the Act⁷ refers to "changes in current product characteristics and production and packaging practices which would reduce the amount of solid waste," it concludes that this is the only statutory language which encompasses undiscarded beverage containers; since, it continues, Congress did not include similar language in the section concerning guidelines, all it authorized was a study of this aspect of the solid waste problem.

EPA responded that § 205 is not a limit on § 209. In addition, it might have emphasized the general looseness of statutory language in the Act; significantly, there is a very poor fit between § 209 and the definition section, 203. A few of the terms in § 209 are defined in § 203, but others do not match. Given such sloppy draftsmanship, it seems erroneous to attribute much significance to Congress' failure to use the term "packaging practices" in § 209.

Legislative History: Federal Leadership Role

In an attempt to clarify statutory ambiguities and confusions, both sides invoked the legislative history. In this effort, the Brewers Association again came off second or third best. It advanced the broad assertion that the 1970 Resource Recovery Act, which added the relevant provisions to the Solid Waste Recovery Act, was not intended to grant any regulatory authority. This EPA easily disposed of by pointing to the language of § 211, which, as noted, unambiguously makes all § 209 guidelines mandatory at federal facilities.

The Defense Department once again proved more meticulous. It opened by frankly acknowledging that no legislative history specifically confirms or denies EPA's authority to promulgate beverage container standards. But, it continued, the Senate Report⁸ on what later became § 209 made it clear that the "solid waste management practices" which it covered were limited to treatment of discarded solid materials.⁹

Nonetheless, EPA's view has stronger support in the general legislative history of the 1970 amendments. For one thing, it noted, their explicit and overriding purpose was to turn around lagging federal facilities and make them leaders in the handling of solid waste.¹⁰ Moreover in approaching the problem, Congress was explicitly aware of the major impact disposable beverage containers have on the solid waste management problem. For example, Senator Jennings Randolph, Chairman of the Senate Public Works Committee, the panel responsible for the amendments, stated in debate:

[g]lass and metal package containers amount to 90 percent of typical municipal incinerator residues…. It is estimated that in 1970 if all soft drinks were purchased in returnable, money-back containers, American consumers could have saved an estimated $650,000,000. This was the cost for the convenience of using throwaway containers.¹¹

[5 ELR 10199]

Since it knew that disposable beverage containers play such a large role in generating solid wastes, Congress, EPA argued, could hardly have intended to exclude them from the "solid waste management systems" which it authorized EPA to develop for federal facilities.

Conclusion: EPA's Internation Is Reasonable

A review of the respective positions in the argument over EPA authority to promulgate mandatory beverage container guidelines for federal agencies demonstrates at the very least that EPA has interpreted the pertinent statute reasonably; even if not overwhelming its position is plausible and not excessively broad. Under settled administrative law principles, such an interpretation should be accepted in court, for it is elementary that an agency's own view of the statutes it is charged with implementing is entitled to great weight.¹² And this presumption is strongest where, as here, it is a new and untried statutory provision which is being implemented.¹³

Whether EPA can prevail in court may soon be known, for the draft guidelines, labeled 40 C.F.R. part 244,¹⁴ are scheduled for Federal Register publication by the end of October, and litigation is threatened on the authority point.

1. Currently staggering under the burden of some 125 incomplete regulations and nearly 500 pending lawsuits, EPA has reportedly responded to the hopeless magnitude of its tasks by reorganizing its work so as to downgrade development of those draft rules which are deemed likely to prove "unacceptable to regulatee and society in general." New York Times, Sept. 28, 1975, p. 1. In other words, rather than heed legislative dictates, EPA appears to be letting controversial matters slide, and this at a time when, in the words of Leon Billings, senior staff aide to the Senate Subcommittee on Environmental Pollution, "EPA is right now far behind meeting its legislative requirements." Id.

2. Brown v. EPA, 5 ELR 20546 (9th Cir. 1975); Maryland v. EPA, 5 ELR 20651 (4th Cir. 1975). See Comment, Circuits Split on Whether EPA May Require a State to Adopt and Enforce Clean Air Act Transportation Controls, 5 ELR 10193 (Nov. 1975).

3. The Resource Recovery Act of 1970, amending the Solid WasteDisposal Act, 42 U.S.C. §§ 3251 et seq., ELR 41901.

4. Id., § 209. The case is Natural Resources Defense Council v. Train, No. C-74-1202 (N.D. Cal. filed 1974), currently under continuing judicial surveillance following EPA's informal agreement to issue guidelines.

5. Id., § 211.

6. The experience under Oregon's bottle bill suggests as much. See Comment, Oregon's "Bottle Bill" Survives Challenges, Produces Results, 3 ELR 10012 (1973). But it should be noted that Oregon's law, unlike the EPA guidelines, does ban pull-top cans.Id.

7. Section 205(a), which directs the EPA to study a number of subjects.

8. S. Rep. No. 91-1034 (1970).

9. Id., at 5, 28.

10. Id. at 15. The report observed that:

many Federal agencies have a very poor record of solid waste management. Federal facilities are inclined to place important environmental quality control factors in a subordinate role to their mission. This is no longer appropriate or acceptable.

The Senate's 1970 view of federal facility footdragging retains surprising vitality in 1975. See Shaw, The Procedures to Ensure Compliance by Federal Facilities with Environmental Quality Standards, 5 ELR 50211 (Nov. 1975).

11. Vol. 116, Cong. Rec. 2670 (1970), cited in EPA Legal Compilation (Solid Waste) 218.

12. Udall v. Tallman, 380 U.S. 1, 16 (1965).

13. Norwegian Nitrogen Products v. United States, 288 U.S. 294, 315 (1933) (Cardozo, J.).

14. Interested readers may obtain a June 1975 draft of the guidelines from the Reporter at cost. EPA proposed Solid Waste Management Guidelines for Beverage Containers, 40 C.F.R. Part 244 (draft June 2, 1975) (EPA-PR-1) (19 pp. $1.00).