ELR Citation: ELR 20172
No(s). s. 07-15613, -15695 (9th Cir. Aug 5, 2009)

The Second Circuit upheld the dismissal of homeowners' RCRA and CWA claims against a gun club in connection with their use of lead shot on a shooting range. The homeowners argued that by allowing lead shot to be discharged onto the property, the gun club was operating a hazardous waste disposal facility without a permit in violation of RCRA §6925. But 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 the RCRA subtitle C permitting regulations. EPA's interpretation is entitled to deference. Accordingly, the gun club did not need a permit under RCRA. In addition, the homeowners failed to adduce sufficient evidence to create a material issue of fact regarding whether lead contamination on the shooting range constitutes "imminent and substantial" endangerment to health or the environment. The court also affirmed the lower court's grant of summary judgment in favor of the gun club on the homeowners' claim that the gun club was required to obtain a CWA permit. Even assuming jurisdictional wetlands were present on the shooting range and that the berm located at the end of the firing range is an identifiable source from which lead pollution reaches jurisdictional wetlands, this is not enough to satisfy the CWA requirement of a point source. The homeowners simply failed to show that the migration of lead from the berm by virtue of runoff and airborne dust is a point source discharge.

[A prior decision in this litigation can be found at 37 ELR 20038.]