600 F.2d 974 (D.C. Cir. 1979), 77-1867, United States Brewers Ass'n, Inc. v. E.P.A.

Docket Nº:77-1867.
Citation:600 F.2d 974
Case Date:May 23, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 974

600 F.2d 974 (D.C. Cir. 1979)





No. 77-1867.

United States Court of Appeals, District of Columbia Circuit

May 23, 1979

Argued Dec. 13, 1978.

As Amended May 31, 1979.

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William D. Tyler, Washington, D. C., for petitioner.

Mark R. Sussman, Atty., Dept. of Justice, Washington, D. C., with whom James W.

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Moorman, Asst. Atty. Gen., Angus Macbeth, Atty., Dept. of Justice, Joan Z. Bernstein, Gen. Counsel, E. P. A., and Merideth Wright, Atty., E. P. A., Washington, D. C., were on the brief for respondent.

Samuel Bernstein, New York City, was on the brief for amicus curiae urging that the decision of the E. P. A. be set aside and the Beverage Container Regulations declared void.

Before BAZELON, LEVENTHAL and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

The United States Brewers Association, Inc. (the Brewers) seeks review of a final order of the Administrator of the United States Environmental Protection Agency, entered August 16, 1977. 1 In the challenged order the Administrator denied the Brewers' petition to repeal the Agency's "Solid Waste Management Guidelines for Beverage Containers". The Agency has moved to dismiss the petition for review for lack of jurisdiction. We deny the motion to dismiss and affirm the Administrator's order.

The Beverage Container Guidelines (40 C.F.R. Part 244) describe a system for resource conservation which is recommended to state and local governments. Section 6004 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6964 requires that executive agencies insure compliance with these recommended Guidelines. The Guidelines require that all beverage containers sold at federal facilities be made "returnable" by the requirement of a five-cent deposit as an incentive to the consumers to return empty containers for reuse or recycling. Returnable containers need not be refillable; cans and non-refillable bottles may be used. Beverages in sealed containers sold on federal facilities must be labeled returnable and deposits must be refunded to the consumer when containers are returned. Dealers are forbidden to procure beverages in beverage containers from distributors who refuse to cooperate in the program.


The motion to dismiss for want of jurisdiction raises novel and difficult questions which require us to examine the statutory and procedural background of the Administrator's order denying the petition for review.

The guidelines for beverage containers are one of a series of solid waste management guidelines issued by EPA. They were promulgated September 21, 1976, pursuant to section 209(a) of the Solid Waste Disposal Act as amended by the Resource Recovery Act of 1970. (P.L. 91-512, 42 U.S.C. § 3254c (1970)) (1970 Act) That section required EPA to "recommend to appropriate agencies and publish in the Federal Register guidelines for solid waste recovery, collection, separation and disposal systems . . . ." Section 211 of the 1970 Act, 42 U.S.C. § 3254e (1970), made compliance with the guidelines by federal executive agencies mandatory.

On October 21, 1976, one month after promulgation of the Beverage Container Guidelines, the Resource Conservation and Recovery Act of 1976 was enacted. (P.L. 94-580, 42 U.S.C. § 6901 Et seq.) (1976 Act) The 1976 statute substantially amended the Solid Waste Disposal Act of 1970. It replaced section 209 of the former Act with a new section 1008, 42 U.S.C. § 6907. The Report on the Senate bill, from which section 1008 was derived, states that "section 209 is amended to broaden the scope of information and solid waste management guidelines authorized by the Resource Recovery Act of 1970." S.Rep.No. 94-988, 94th Cong., 2d Sess. 12 (1976). Additionally, the 1976 Act reenacted section 211 of the 1970 Act (Applicability of Solid Waste Disposal

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Guidelines to Executive Agencies) verbatim as section 6004, 42 U.S.C. § 6964, and added a new section 4002, 42 U.S.C. § 6942, which requires federal guidelines to assist in the development and implementation of state solid waste management plans.

The 1970 Act contained no specific provision for judicial review of the Administrator's action in promulgating regulations. The 1976 Act, section 7006, 42 U.S.C. § 6976, provided for review on petition to this court:

Any judicial review of final regulations promulgated pursuant to this chapter shall be in accordance with sections 701 through 706 of Title 5, except that

(1) a petition for review of action of the Administrator in promulgating any regulation, or requirement under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. Any such petition shall be filed within ninety days from the date of such promulgation, or after such date if such petition is based solely on grounds arising after such ninetieth day.

In addition the 1976 Act provided for a petition to repeal a regulation (section 7004, 42 U.S.C. § 6974(a)):

(a) Petition. Any person may petition the Administrator for the promulgation, amendment, or repeal of any regulation under this chapter. Within a reasonable time following receipt of such petition, the Administrator shall take action with respect to such petition and shall publish notice of such action in the Federal Register, together with the reasons therefor.

The 1976 Act contained no savings clause explicitly keeping in effect regulations promulgated under the 1970 Act until changed by action of the regulatory agency. This led EPA's deputy assistant administrator for solid waste management programs to inquire of agency counsel "whether EPA must republish the guidelines already issued under section 209 of the Solid Waste Disposal Act before federal agencies can be required, by section 6004 of the amended Solid Waste Disposal Act, to comply with them." On November 12, 1976 the Agency counsel responded that republication was not necessary. In his memorandum, contained in the Joint Appendix at pages 84-88, counsel first reviewed the statutory background of the problem, as follows:


The Solid Waste Disposal Act (42 U.S.C. 3251ff.) was amended in several respects by the Resource Conservation and Recovery Act of 1976, including renumbering of all sections. Section 209 of the existing SWDA, authorizing EPA to publish guidelines, was amended to broaden the scope of the guidelines, and to require that congressional committees be notified prior to EPA's publication of guidelines, and renumbered as section 1008. Even though the wording of § 209 is not adopted by § 1008, each requirement or authorization by § 209 is also required or authorized by § 1008. Section 211 of the existing SWDA, making those guidelines mandatory for federal facilities, was simply renumbered as section 6004.

Counsel noted that Congress was "fully aware" of the guidelines published on September 21, 1976, and he concluded that the legislative history disclosed a congressional intent that the Guidelines should remain in effect. He reasoned that the requirement that congressional committees be notified prior to the publication of the Guidelines "was to let Congress know of EPA's proposals in the 'beginning' when they were 'new', and 'not after the event'." He recommended however that the Agency "put out an amendment in the Federal Register updating the authority section of each guideline to read 'under authority of (the relevant sections) of the Solid Waste Disposal Act of 1965, as amended by the Resource Recovery Act of 1970 and the Resource Conservation and Recovery Act of 1976'." He recommended further that the Agency "also review the guidelines for consistency with Section 1008(a) of the RCRA and write a letter to the appropriate congressional committees embodying its conclusions."

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The Agency did not republish the Guidelines, nor did it "put out" an amendment in the Federal Register and write a letter to the appropriate congressional committees.

On February 7, 1977 the Brewers filed their petition with the Administrator, requesting the repeal of the Guidelines promulgated on September 21, 1976. 2 The...

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