National Recycling Coalition, Inc. v. Reilly

890 F.2d 1242, 281 U.S. App. D.C. 437, 1989 WL 149109

Opinions

ORDER

PER CURIAM.

Petitioners’ Suggestion for Rehearing En Banc has been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular, active service did not vote in favor of the suggestion.' Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that the suggestion is denied.

A statement of Circuit Judge STEPHEN F. WILLIAMS, joined in by Circuit Judge SENTELLE is attached.

A dissenting statement by Chief Judge WALD is attached.

STEPHEN F. WILLIAMS, Circuit Judge, concurring in the denial of rehearing en banc, with whom SENTELLE, Circuit Judge, concurs:

Under EPA’s interpretation of 42 U.S.C. § 6962(c)(1)(C) (1982) the provision functions as a tie-breaker, giving the business to recycled paper when its price is the same as virgin paper’s. See 53 Fed.Reg. 23546, 23559/2 (1988). Petitioners claim that this strips the clause of meaning. The force of this theory is greatly weakened by the adjacent statutory provisions and by EPA’s guidelines thereunder. Section 6962(c)(1) directs consideration of three factors:

The decision not to procure such items shall be based on a determination that such procurement items—

(A) are not reasonably available within a reasonable period of time;

(B) fail to meet the performance standards set forth in the applicable specifications or fail to meet the reasonable performance standards of the procuring agencies; or

(C) are only available at an unreasonable price.

42 U.S.C. § 6962(c)(1) (emphasis added). Congress’s repeated use of a “reasonableness” standard can be seen as a grant of flexibility to the EPA (and other agencies) in implementing the program. While EPA has adopted a rather narrow interpretation of the “unreasonable price” standard, it has taken a much broader view of “reasonable performance standards,” recommending that procuring agencies “assure that their specifications for paper and paper products require the use of recovered materials to the maximum extent possible without jeopardizing the intended end use of these items.” 53 Fed.Reg. at 23552/2.¹ Under this latter interpretation, for example, procuring agencies are advised to take such pro-recycling steps as revising specifications of “brightness and whiteness for copy paper” that are unnecessarily stringent or that serve only aesthetic purposes. 40 C.F.R. § 250.12(b) (1988); see also 53 Fed.Reg. at 23552/3 (discussing specifications related to aesthetics). EPA’s interpretation of the “reasonably available” standard falls between these poles, stating that procuring agencies do not “have to tolerate any unusual or unreasonable delays” under this section. 53 Fed.Reg. at 23559/3. Thus, EPA has chosen to give recycled material only a limited advantage in the domain of price, which is hardly surprising in a time of concern over government expenditures, to maintain some limited flexibility in availability requirements, and to press hard for elimination of artifical non-price barriers. Such a choice advances the statutory goal of increasing federal procurement of recycled materials and is permissible under the language and structure of the statute.

1

. EPA’s only explicit statutory authority to encourage such changes in performance specifications, § 6962(d)(2), embraces only "Federal agencies," a narrower statutory category than procuring agencies. Nevertheless, EPA extended its regulations under § 6962(d)(2) to cover "all procuring agencies (rather than "Federal agencies" as provided in the Act)” because, in its opinion, "(ujnless their specifications are revised ..., these agencies will be unable to implement the affirmative procurement requirements of RCRA Section 6002(c)(1) and (i) (42 U.S.C. § 6962(c)(1) and (i) 53 Fed.Reg. at 23552/1-2 (emphasis in original); see also 40 C.F.R. § 250.25(a) (embodying EPA’s interpretation); cf. 42 U.S.C. § 6962(i)(3)(B) (Supp. IV 1986) (requiring procuring agencies to set "minimum recovered materials content specifications ... to assure that the recovered materials content ... is the maximum available without jeopardizing the intended end use of the item, or violating the limitations of subsection (c)(1)(A) through (C)”) (emphasis added).