ELR Citation: ELR 20483
No(s). B-87-250 (EBB) (D. Conn. Sep 11, 1991)

The court holds that spent lead shot from a trap and skeet shoot club discarded into waters of Long Island Sound constitutes hazardous solid waste under the Resource Conservation and Recovery Act (RCRA), and a factual dispute concerning the toxicity of target material requires an evidentiary hearing. Since the late 1920s, approximately four million pounds of lead were deposited in waters of Long Island Sound as the result of trap and skeet shooting activities at the club. Studies of sediments, aquatic life, and waterfowl in the area indicated a lead contamination problem requiring remediation, and the Connecticut Department of Environmental Protection (DEP) ordered the club to cease discharging lead shot into Connecticut waters and to take remedial steps. The court first holds that the plaintiff's federal Clean Water Act citizen suit is barred because the Connecticut DEP has been diligently prosecuting an action against the club since 1985, and the Connecticut law under which the DEP is proceeding is comparable to the federal Act. Like the Clean Water Act, the state law provides for an evaluation of specific circumstances before assessing penalties, a public hearing on request, and judicial review. The plaintiff did not intervene in the DEP's proposed orders against the club, and while the plaintiff may prefer more vigorous enforcement, the DEP's actions are not so remiss as to be rejected under the diligent prosecution standard. That the DEP has not assessed civil penalties does not save the plaintiff's suit. The court next holds that the club receive requisite notice of intent to sue from the plaintiff, and the plaintiff's mere name change after filing suit without otherwise changing the organization does not raise a factual issue.

Turning to the RCRA claims, the court first holds that an interpretative letter ruling by the Environmental Protection Agency (EPA) Office of Solid Waste, that shooting ranges are not covered by RCRA, is not entitled to deference. The court next holds that the lead shot and target fragments are solid waste under RCRA, which defines solid waste as any discarded material. The court holds that lead shot and target debris are not exempt from the "discarded" definition merely because they result from normal use of a manufactured product. No "normal use" or "original intended purpose" exemption appears in the statute or regulations, and RCRA would be without teeth if all products used for their original intended purpose were exempt. Further, the plaintiff's claim that skeet shooting activities create solid waste is buttressed by the broad definition of "disposal," and by a legislative report indicating that "discarded" was meant to expand the definition of solid waste. The court concludes that the absence of an EPA regulation on the question of gun clubs leaves room for judicial interpretation, and observes that the D.C. Circuit, which has considered the majority of RCRA cases, is willing generally to deem items discarded, particularly if the materials are functionally part of the waste disposal problem. The court observes that one circuit judge has proposed that Congress intended a functional RCRA definition of "discarded," inclusive of activities that create an environmental hazard, and the U.S. Supreme Court has opened a window for a functional judicial interpretation of environmental statutes. The court next holds that the act of shooting a gun becomes the act of discarding, and shooting at targets is an act of discarding lead shot, target debris, and spent cartridges. The court concludes that the defendants should be held liable because they were aware that they were creating waste, as they demonstrated by collecting the most easily accessible trash—spent gun cartridges. The defendants conceded that they would be subject to RCRA regulation if they had picked up the shot and debris and dumped it in the Sound. To hold that RCRA regulates only wastes physically gathered and then discarded would undermine its objectives. Noting that the club becomes a hazardous waste facility under RCRA if the lead shot and target fragments are hazardous solid waste, the court next holds that the accumulations of lead shot used at the club are hazardous waste under RCRA. Studies indicate that accumulation of lead in the tissues of mussels and ducks are sufficient to indicate a lead contamination problem requiring remediation. However, the court holds that the toxicity of the target material is a factual dispute to be addressed at an evidentiary hearing.

[Pleadings in this case are digested at ELR PEND. LIT. 66090 and 66098.]

Counsel for Plaintiff
David M. Lesser
Clendenen & Lesser
400 Orange St., P.O. Box 78, New Haven CT 06501
(203) 562-0300

Counsel for Defendants
Francis J. Brady, Mark R. Sussman, R. Bradford Fawley
Murtha, Cullina, Richter & Pinney
City Place, P.O. Box 3197, Hartford CT 06103
(203) 240-6000