In a case of first impression that may have an impact on what constitutes hazardous waste when a product is deposited on land as part of its normal use or intended purpose, the United States Court of Appeals for the Second Circuit affirmed a decision of the Federal District Court for the District of Connecticut which had rejected claims of violations of the Resource Conservation and Recovery Act (“RCRA”) and the Clean Water Act (“CWA”) brought by a neighborhood group against a gun club and its members for operating a shooting range where lead shot was left at the site. Cordiano v. Metacon Gun Club, Inc., No. 07-0795-cv, 2009 U.S. App. LEXIS 16980 (2d Cir. 2009).

The neighborhood group had sued the gun club in federal court claiming that: (1) the shooting range had been operating without a hazardous waste permit in violation of RCRA; (2) lead “discarded” on the site “may present an imminent and substantial endangerment to health or the environment”; and (3) the lead shot constituted a discharge of pollutants into the waters of the United States which violated the CWA because the shooting range did not possess a state-issued CWA discharge permit. The district court dismissed the RCRA permitting violation for failure to state a claim and entered summary judgment on the RCRA “substantial endangerment” and CWA claims.

On appeal, the Second Circuit held that:

  1. The district court properly dismissed the plaintiff neighborhood group’s claim concerning the alleged disposal of hazardous waste without a RCRA permit, deferring to the EPA’s long-standing and consistent interpretation that RCRA regulations do not apply to the regular, intended use of lead shot on a shooting range;
  2. Plaintiff neighborhood group failed to adduce sufficient evidence to create a material issue of fact regarding whether lead contamination at the shooting range constituted “an imminent and substantial endangerment to health or the environment”; and
  3. Plaintiffs failed to sufficiently create a material issue of fact as to whether the gun club was discharging lead shot into “navigable waters” from a “point source.”

No RCRA Permit Required

In order to determine whether the gun club was operating a hazardous waste disposal facility without a permit in violation of RCRA, the Second Circuit looked to the definition of “hazardous waste.” Having concluded that the meaning of “hazardous waste” must fall within the regulatory (as opposed to statutory) definition of “solid waste,” defined as constituting “discarded material,” the Second Circuit found that such definition was ambiguous as to whether lead shot discharged into a shooting range constituted “discarded material.” As a result, the appeals court invited the United States to file an amicus brief addressing whether lead shot discharged at a shooting range falls within the regulatory definition of solid waste.

The United States maintained that the “EPA. . . has consistently taken the position that the discharge of lead shot as part of the normal use of that product (i.e., being fired from a gun at a firing range) does not render the materials ‘discarded’ within the meaning of RCRA ... regulations...,” and further that “EPA has repeatedly stated that its regulatory jurisdiction under RCRA does not apply to products that are applied to the land in the ordinary matter of use, because such products are used, not ‘abandoned.’”

The Second Circuit stated that EPA’s interpretation was entitled to deference and therefore, concluded that lead shot on the gun club site was not abandoned, but was the result of its regular, intended use. Accordingly, the gun club was not required to obtain a RCRA permit.

No RCRA Endangerment

On the neighborhood group’s claim that lead “discarded” on site “may present an imminent and substantial endangerment to health or the environment,” the district court had entered summary judgment concluding that the plaintiffs had provided insufficient evidence that solid waste had been “discarded” at the gun club facility because the gun club had submitted uncontested evidence that spent casings and munitions were periodically removed.

The Second Circuit determined that it did not need to reach the issue of whether lead at the gun club facility had been “discarded” because it concluded that the evidence submitted by the neighborhood group in support of its RCRA endangerment claim failed to raise a material issue of fact as to whether the spent ammunition was likely to result in harm to human health or the environment. The findings in the group’s expert report submitted in support of the RCRA endangerment claim merely concluded that the “presence of firing-range-related contaminants on the site, primarily total lead, represents a potential exposure risk to both humans and wildlife. A risk assessment utilizing the data obtained during this investigation would be necessary to evaluate the degree of risk to humans and wildlife.” This risk assessment was never undertaken by the plaintiff neighborhood group.

Moreover, the Second Circuit determined that evidence that samples taken from the gun club site exceeded state’s Remediation Standard Regulations (“RSRs”) simply did not provide an adequate basis for a jury to conclude that the federal law had been violated, because such state standards “do not define a party’s federal liability under RCRA.” Therefore, the Second Circuit affirmed the district court’s grant of summary judgment.

No Clean Water Act Permit Required

The Second Circuit also affirmed the district court’s grant of summary judgment on the neighborhood group’s claim that the gun club was discharging pollutants into jurisdictional wetlands from a point source without a state-issued CWA discharge permit, but did so on alternate grounds.

The district court had concluded that the neighborhood group had failed to provide sufficient facts that the gun club was discharging lead into “navigable waters,” i.e. jurisdictional wetlands under the CWA, pursuant to the United States Supreme Court’s landmark decision in Rapanos v. United States, 547 U.S. 715 [2006]. (Rapanos provides a test for when wetlands constitute “navigable waters,” i.e. jurisdictional wetlands, under the CWA.)

On appeal, the Second Circuit concluded that − while as a matter of law the entire shooting range did not constitute jurisdictional wetlands to trigger the CWA − it assumed an area bordering the shooting range as well as unspecified portions of the shooting range itself constituted wetlands for purposes of the CWA.

The Second Circuit, therefore, decided that it needed to address whether the discharge of lead shot had come from a “point source.” Under the CWA, “point source” is defined as “any discernable, confined and discrete conveyance.” The neighborhood group had claimed that lead carried by surface water runoff into nearby wetlands as well as bullets fired from the shooting range’s firing line into those wetlands were both discharges from point sources. Having concluded that Congress had not specified whether surface water runoff could fall within the statutory definition of point source, the Second Circuit determined that it was reasonable for EPA to limit the scope of the term “point source” to surface water that is collected or channeled by human beings.

As a result, the Court of Appeals affirmed the district court’s grant of summary judgment, holding that: (1) vague references to potential surface water runoff and windblown dust in the neighborhood group’s expert report were insufficient to raise a material issue of fact that the lead shot came from a point source; and (2) that even assuming the presence of jurisdictional wetlands somewhere on the shooting range, there was no evidence that lead was discharged into those areas from the shooting range’s firing line.

Lessons Learned

The Second Circuit’s opinion may have implications in other areas of the law involving the contamination of land or water resulting from the use of a product for its intended purpose. Take, for example, the ordinary and legal application of pesticides and herbicides to cropland. RCRA exempts such use from the definition of solid waste, 40 C.F.R. § 261.2(c)(ii), and therefore such materials are not “hazardous wastes” under federal law. Many state statutes and regulations, however, also apply to “hazardous wastes” as defined under RCRA. The Connecticut Transfer Act is just one example. Contamination resulting from the use of these commercial chemical products may not be subject to these state statutes either.

Whether the Second Circuit’s decision ultimately has an impact in these other areas of the law will depend upon how closely the state law follows the federal RCRA regulatory regime.

The Second Circuit’s opinion is also of value to those potentially impacted by the Clean Water Act’s requirements. By affirming the scope of EPA’s interpretation of “point source,” the appeals court established some limits to the reach of the act’s requirements.