[Federal Register Volume 62, Number 85 (Friday, May 2, 1997)]
[Rules and Regulations]
[Pages 24051-24054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11491]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 244

[FRL-5814-7]


Solid Waste Programs; Management Guidelines for Beverage 
Containers, and Resource Recovery Facilities Guidelines; Removal of 
Obsolete Guidelines

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Partial withdrawal of direct final rule.

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SUMMARY: On December 31, 1996, the Environmental Protection Agency 
(EPA) published a direct final rule (61 FR 69032) removing from the 
Code of Federal Regulations (CFR) two guidelines pertaining to solid 
waste management which are obsolete. This action was published without 
prior proposal. Because EPA has received adverse comment with respect 
to the removal of 40 CFR Part 244, Solid Waste Management Guidelines 
for Beverage Containers, EPA withdraws the removal of this Part from 
the direct final rule. The withdrawal of this Part does not affect the 
removal of 40 CFR Part 245 which became effective March 3, 1997.

EFFECTIVE DATE: March 3, 1997.

FOR FURTHER INFORMATION CONTACT: Deborah Gallman (703) 308-8600, U.S. 
EPA, Office of Solid Waste and Emergency Response, 401 M Street, SW, 
(5306W), Washington, D.C. 20460, or the RCRA Superfund Hotline, phone 
(800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan 
area.

SUPPLEMENTARY INFORMATION: On December 31, 1996, EPA published in the 
Federal Register a direct final rule to remove two guidelines 
pertaining to solid waste management which the Agency believes to be 
obsolete, 40 CFR Part 244, Solid Waste Management Guidelines for 
Beverage Containers, and Part 245, Resource Recovery Facilities 
Guidelines. The activities addressed in these 1976 guidelines have been 
included in numerous state and local statutes and regulations and other 
Federal rules, or have been superseded by such Presidential actions as 
Executive Order 12873. The direct final rule was published without 
prior proposal in the Federal Register but with a provision for a 30 
day comment period. In addition, EPA published a proposed rule, also on 
December 31, 1996 (61 FR 69059). EPA announced in both rules that, 
should EPA receive adverse comment on the direct final rule, the Agency 
would withdraw the direct final rule and address the comments received 
in a subsequent final rule based on the related proposed rule. EPA 
received adverse comment within the prescribed comment period 
specifically addressing the removal of 40 CFR Part 244. EPA did not 
receive adverse comments addressing the removal of 40 CFR Part 245. 
With today's action, EPA is withdrawing the removal of 40 CFR Part 244 
from the December 31, 1996 direct final rule (61 FR 69032). The 
withdrawal of Part 244 from the direct final rule does not affect the 
removal of Part 245 which became effective March 3, 1997, as indicated 
in the direct final rule. The comments received regarding the removal 
of 40 CFR Part 244 will be addressed in a subsequent final rule based 
on the related proposed rule (61 FR 69059).

List of Subjects in 40 CFR Part 244

    Environmental protection, Waste treatment and disposal, Recycling, 
Government property.

    Dated: April 16, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
    For the reasons set forth in the preamble, the amendment removing 
40 CFR Part 244 published at 61 FR 69032 (December 31, 1996) is 
withdrawn and part 244 is added as follows:

PART 244--SOLID WASTE MANAGEMENT GUIDELINES FOR BEVERAGE CONTAINERS

Subpart A--General Provisions

Sec.
244.100  Scope.
244.101  Definitions.

Subpart B--Requirements

244.200  Requirements.
244.201  Use of returnable beverage containers.
244.202  Information.
244.203  Implementation decisions and reporting.

Appendix to Part 244--Recommended Bibliography

    Authority: Secs. 1008 and 6004 of the Solid Waste Disposal Act, 
as amended by the Resource Conservation and Recovery Act of 1976, as 
amended (42 U.S.C. 6907, 6964).

Subpart A--General Provisions


Sec. 244.100  Scope.

    (a) The ``Requirement'' sections contained herein delineate minimum 
actions for Federal agencies for reducing beverage container waste.
    (b) Section 211 of the Act and Executive Order 11752 make the 
``Requirements'' section of the

[[Page 24052]]

guidelines mandatory upon Federal agencies. They are recommended for 
adoption by State and local governments and private agencies.
    (c) Intent and Objectives. (1) These Guidelines for Beverage 
Containers are intended to achieve a reduction in beverage container 
solid waste and litter, resulting in savings in waste collection and 
disposal costs to the Federal Government. They are also intended to 
achieve the conservation and more efficient use of energy and material 
resources through the development of effective beverage distribution 
and container collection systems.
    (2) The guidelines are intended to achieve these goals by making 
all beverage containers returnable and encouraging reuse of recycling 
of the returned containers. To accomplish the return of beverage 
containers, a deposit of at least five cents on each returnable 
beverage container is to be paid upon purchase by the consumer and 
refunded to the consumer when the empty container is returned to the 
dealer. This refund value provides a positive incentive for consumers 
to return the empty containers. Once containers are returned, 
nonrefillable containers can be recycled and refillable bottles can be 
reused.
    (3) The minimum deposit of five cents has been chosen because it is 
deemed a large enough incentive to induce the return of most 
containers, and it is the most widely used deposit amount in present 
deposit systems. Because this action is intended to be compatible with 
present deposit systems, it is recommended that Federal facilities 
apply higher deposit levels in localities where higher levels are 
ordinarily used and lower deposit levels if the local area has an 
established return system with a minimum deposit level, for some or all 
beverage containers, of less than five cents.
    (4) Final determination of how the requirements of the guidelines 
will be met rests with the head of each Federal agency.
    (5) Federal facilities implementing the guidelines must charge 
refundable deposits on both refillable beverage containers and 
nonrefillable ones. Use of a refillable beverage container system will 
achieve the objectives of this guideline and will also most likely 
result in lower beverage prices for consumers. However, placing 
refundable deposits on nonrefillable containers, which are subsequently 
returned and recycled, also achieves the objectives of the guidelines.
    (d) Nonimplementation for Federal Facilities. (1) The objectives of 
these guidelines are to reduce solid waste and litter and to conserve 
energy and materials through the use of a return system for beverage 
containers. In order to have a substantial impact on solid waste and 
litter created by beverage containers and to effect the concomitant 
energy and materials savings in a cost-effective manner, three 
conditions will be necessary: First, that consumers continue to 
purchase beverages from dealers at Federal facilities; second, that 
empty containers be returned and then reused or recycled; third, that 
the costs of implementation are not prohibitive. The head of each 
agency should consider these factors in order to make a determination 
regarding implementation of these guidelines.
    (2) The Administrator recognizes that the requirements of these 
guidelines may not be practical at some Federal facilities due to 
geographic or logistic problems of a local nature. Further, he 
recognizes that the use of a returnable beverage container system will 
accomplish nothing if all reasonable efforts to implement such a system 
have failed to induce consumers to buy beverages in returnable 
containers or to return them when empty. When these situations persist, 
agencies may determine not to continue implementation of these 
guidelines.
    (3) Federal agencies that make the determination not to use 
returnable containers shall provide to the Administrator the analysis 
and rationale used in making that determination as required by 
Sec. 244.100(f)(3). The Administrator will publish notice of 
availability of this report in the Federal Register.
    The following conditions are considered to be valid reasons for not 
using returnable beverage containers.
    (i) Situations in which, after a trial implementation, there is no 
alternative available that results in meeting the objectives of the 
guidelines in a cost effective manner. Examples of indications of this 
situation include, but are not limited to:
    (A) Data indicating a substantial and persistent reduction in 
beverage sales that is not directly attributable to any other cause; 
and
    (B) Failure to establish a beverage container return rate that 
effectively achieves the objectives of these guidelines.
    (ii) Situations in which no viable alternative can be found which 
avoids excessive, irrecoverable costs to the facility or the Agency. 
These conditions may prevail at either part or all of a facility. It is 
expected that facilities will use returnable beverage containers in 
those portions of their beverage distribution systems where it is 
effective to do so. However, it is recognized that in some situations, 
such as for unattended vending machines where it is impractical to 
establish refund locations, or in small remote outlets where the 
majority of consumers are transient, it may not be possible to use 
returnable containers effectively. The provisions for nonimplementation 
can be applied to those portions of a facility.
    (e) The Environmental Protection Agency will render technical 
assistance and other guidance to Federal agencies when requested to do 
so pursuant to section 3(d)(1) of Executive Order 11752.
    (f) Reports--(1) Implementation Schedule Report. This report is to 
advise the EPA of plans for the implementation of these guidelines. It 
is to be submitted to the Administrator within 60 days following an 
agency's determination to implement, and should include a list of 
planned implementation actions and a schedule indicating when those 
actions will be taken.
    (2) [Reserved]
    (3) Nonimplementation Report. Nonimplementation reports are to be 
submitted to the Administrator as soon as possible after a final agency 
determination has been made not to use returnable beverage containers 
but not later than sixty days after this determination. The 
Administrator will indicate to the reporting agency his concurrence or 
nonconcurrence with the agency's decision, including his reasons 
therefor. This concurrence or nonconcurrence is advisory. 
Nonimplementation reports should include:
    (i) A description of alternative actions considered or implemented, 
including those actions which, if taken or continued, would have 
involved a deposit or return system.
    (ii) A description of ongoing actions that will be continued and 
actions taken or proposed that would preclude future implementation of 
a returnable beverage container system. This statement should identify 
all agency facilities or categories of facilities that will be 
affected.
    (iii) An analysis in support of the determination not to implement 
a deposit system, including technical data, market studies, and policy 
considerations used in making that determination. If the determination 
not to implement is based on inability to achieve a cost-effective 
system, this analysis should include such things as sales volume, 
impact on total overhead costs, administrative costs, other costs of 
implementation, percentage of

[[Page 24053]]

containers sold that are returned, solid waste and litter reduction, 
energy and materials saved, and retail prices (before and after 
implementation).


Sec. 244.101  Definitions.

    (a) Beverage means carbonated natural or mineral waters; soda water 
and similar carbonated soft drinks; and beer or other carbonated malt 
drinks in liquid form and intended for human consumption.
    (b) Beverage container means an airtight container containing a 
beverage under pressure of carbonation. Cups and other open receptacles 
are specifically excluded from this definition.
    (c) Consumer means any person who purchases a beverage in a 
beverage container for final use or consumption.
    (d) Dealer means any person who engages in the sale of beverages in 
beverage containers to a consumer.
    (e) Deposit means the sum paid to the dealer by the consumer when 
beverages are purchased in returnable beverage containers, and which is 
refunded when the beverage container is returned.
    (f) Distributor means any person who engages in the sale of 
beverages, in beverage containers, to a dealer, including any 
manufacturer who engages in such sale.
    (g) Federal Agency means any department, agency, establishment, or 
instrumentality of the executive branch of the United States 
Government.
    (h) Federal facility means any building, installation, structure, 
land, or public work owned by or leased to the Federal Government. 
Ships at sea, aircraft in the air, land forces on maneuvers, and other 
mobile facilities; and United States Government installations located 
on foreign soil or on land outside the jurisdiction of the United 
States Government are not considered ``Federal facilities'' for the 
purpose of these guidelines.
    (i) On-Premise Sales means sales transactions in which beverages 
are purchased by a consumer for immediate consumption within the area 
under control of the dealer.
    (j) Recycling means the process by which recovered materials are 
transformed into new products.
    (k) Refillable Beverage Container means a beverage container that 
when returned to a distributor or bottler is refilled with a beverage 
and reused.
    (l) Refund means the sum, equal to the deposit, that is given to 
the consumer or the dealer or both in exchange for empty returnable 
beverage containers.
    (m) Returnable Beverage Container means a beverage container for 
which a deposit is paid upon purchase and for which a refund of equal 
value is payable upon return.

Subpart B--Requirements


Sec. 244.200  Requirements.


Sec. 244.201  Use of returnable beverage containers.

    (a) All beverages in beverage containers sold or offered for sale 
shall be sold in returnable beverage containers. On-premise sales are 
specifically excluded from this requirement provided that empty 
beverage containers are returned to the distributor for refilling, or 
are recycled, either by the dealer or by the distributor when markets 
for recyclable materials are available.
    (b) The deposit shall be at least five (5) cents unless the local 
area has an established return system in operation with a lower minimum 
deposit level. In these specific areas, Federal facilities may adopt a 
minimum deposit equal to the local deposit level.
    (c) A dealer shall accept from a consumer any empty beverage 
containers of the kind, size and brand sold by the dealer, and pay the 
consumer the refund value of the beverage container, provided the 
container is refillable or is labelled in accordance with 
Sec. 244.202(a).
    (d) The refund shall be provided at the place of sale whenever 
possible or as close to that place as practicable, and in any event, on 
the premises of the particular federal facility involved. Refund 
locations shall be conspicuously labelled as refund centers. If they 
are not in the immediate vicinity of the place of sale, notice of their 
location shall be prominently posted at that place of sale.
    (e) A dealer shall not procure beverages in beverage containers 
from distributors who refuse to: Accept from the dealer any returnable 
beverage containers of the kind, size and brand sold by the 
distributor; pay to the dealer the refund value of the beverage 
containers; and reuse the returned containers or recycle them where 
markets for recyclable materials are available.
    (f) Returned refillable beverage containers shall be returned to 
the distributor for refilling. Nonrefillable beverage containers shall 
be returned to the appropriate distributor or recycled, where markets 
for recyclable materials are available.


Sec. 244.202  Information.

    (a) With the exception of refillable beverage containers, every 
returnable beverage container sold or offered for sale by a dealer 
shall clearly and conspicuously indicate, by embossing or by stamp, or 
by a label securely affixed to the beverage container, the refund value 
of the container and that the container is returnable.
    (b) Dealers shall inform consumers that beverages are sold in 
returnable beverage containers by placing a sign, or a shelf label, or 
both, in close proximity to any sales display of beverages in 
returnable containers. That sign or label shall indicate that all 
containers are returnable, separately list the beverage price and 
deposit to be paid by the consumer, and shall indicate where the empty 
beverage containers may be returned for refund of the deposit.


Sec. 244.203  Implementation decisions and reporting.

    Federal agencies are to determine whether or not to implement these 
guidelines by October 20, 1977. Reporting of that determination shall 
be in accordance with the following requirements:
    (a) Federal agencies that plan to implement these guidelines shall 
report that decision to the Administrator in accordance with the 
procedures described in Sec. 244.100(f)(1).
    (b) Agencies that determine not to implement these guidelines shall 
provide to the Administrator a nonimplementation report in accordance 
with Sec. 244.100(f)(3). This report shall include the reasons for 
nonimplementation, based on concepts presented in Sec. 244.100(d).

Appendix to Part 244--Recommended Bibliography

    1. Office of Solid Waste Management Programs. Second report to 
Congress; resource recovery and source reduction. Environmental 
Protection Publication SW-122. Washington, U.S. Government Printing 
Office, 1974.
    2. Applied Decision Systems, Inc. Study of the effectiveness and 
impact of the Oregon minimum deposit law. Salem, Oregon Legislative 
Fiscal Office, 1974.
    3. Midwest Research Institute. Resource and environmental 
profile analysis of nine beverage container alternatives. 
Environmental Protection Publications SW-91c. Washington, U.S. 
Government Printing Office, 1974.
    4. Alpha Beta Acme Markets, Inc. Bottle survey '71: A California 
supermarket report on the cost of handling returnable soft drink 
bottles. 1971.
    5. Research Triangle Institute. The beverage container problem, 
analysis and recommendations. Environmental Protection Agency 
Publication R 2-72-059, 1972.
    6. Research Triangle Institute. An evaluation of the 
effectiveness and costs of regulatory and fiscal policy instruments 
on product packaging. RTI Project No. 41U-824, 1974.
    7. Lowe, R. A. Energy conservation through improved solid waste 
management.

[[Page 24054]]

Environmental Protection Agency Publication SW-125. Washington, U.S. 
Government Printing Office, 1974.
    8. Gudger, C., and J. Bailes. The economic impact of Oregon's 
bottle bill. Oregon State University Press, 1974.
    9. Claussen, E. Oregon's bottle bill: The first six months. 
Environmental Protection Agency Publication SW-109. Washington, U.S. 
Government Printing Office, 1973.
    10. Scheinman, T. Mandatory deposit legislation for beer and 
soft drink containers in Maryland, an economic analysis. State of 
Maryland Council of Economic Advisers, 1974.
    11. U.S. Congress, Senate. Hearings before the Subcommittee on 
the Environment, Committee on Commerce, 93rd Congress, May 6 to 7, 
1974.
    12. Quinn, Robert. No deposit no return * * * a report on 
beverage containers. New York State Senate Task Force on Critical 
Problems, 1975.
    13. Weinberg, R. S. The effect of convenience packaging on the 
malt beverage industry 1947-1969. St. Louis, Missouri, December, 
1971.
    14. Impacts of beverage container regulations in Minnesota; a 
report to the Governor and the Minnesota Legislature. Minneapolis, 
Minnesota State Planning Agency, January, 1974.
    15. Loube, M. Beverage containers; the Vermont experience. 
Washington, U.S. Environmental Protection Agency, 1975.
    16. Nadworny, Milton J. Some economic consequences of the 
Vermont beverage container deposit law. Burlington, University of 
Vermont, February 1975.
    17. O'Brien, M. Returnable containers for Maine; an 
environmental and economic assessment. Portland, Maine, Maine 
Citizens for Returnable Containers, March 17, 1975.
    18. Questions and answers on returnable beverage containers for 
beer and soft drinks. U.S. Environmental Protection Agency, Office 
of Solid Waste Management programs, Resource Recovery Division. 
Washington, June 1975.
    19. Ross, M. H. Employment effects of a ban on nonreturnable 
beverage containers in Michigan. Kalamazoo, Michigan, Kalamazoo 
Nature Center for Environmental Education, April, 1975.
    20. Stern, C., et al. Impacts of beverage container legislation 
on Connecticut and a review of the experience in Oregon, Vermont and 
Washington State. Storrs, University of Connecticut, Department of 
Agricultural Economics, March 20, 1975.
    21. Train, R. E. Win the war on waste. Presented at 3d National 
Congress on Waste Management Technology and Resource Recovery, San 
Francisco, November 14, 1975.
    22. Waggoner, D. Oregon's bottle bill two years later. Portland, 
Oregon, Columbia Group Press, May, 1974.
    23. Council on Environmental Economics. A report on the 
environmental economics regarding mandatory deposit legislation for 
beer and soft drink containers in Maryland. Annapolis, Maryland, 
January, 1975.
    24. O'Brien, M. Returnable containers for Maine; an 
environmental and economic assessment. Maine Citizens for Returnable 
Containers. Portland, Maine, March 17, 1975, 13p.

[FR Doc. 97-11491 Filed 5-1-97; 8:45 am]
BILLING CODE 6560-50-P