ELR Citation: ELR 20699
No(s). 92-7191 (2d Cir. Mar 29, 1993)

The court holds that an operator of a skeet and trap shooting club is required under the Resource Conservation and Recovery Act (RCRA) to clean up lead shot and clay fragments at the club and in the adjacent waters of Long Island Sound, but upholds dismissal of the plaintiff's claims that the operator violated the Federal Water Pollution Control Act (FWPCA) by discharging pollutants from a point source and depositing lead shot and clay targets as fill material, without the appropriate FWPCA §402 and §404 permits. The court first holds that it lacks subject matter jurisdiction over the plaintiff's FWPCA claims, because the suit is directed at wholly past violations. Neither the original complaint nor the amended version alleges an ongoing violation of the FWPCA, and the plaintiff failed to present evidence from which a fact finder could find a likelihood of continuing violations. Because the court dismisses the FWPCA's claims, it does not reach or decide FWPCA §309(g)'s diligent prosecution issue on which the district court grounded its dismissal of the FWPCA claims.

Addressing the plaintiff's RCRA claims, the court holds that the plaintiff failed to allege a valid claim under §7002(a)(1)(A)'s citizen suit provision for operating a hazardous waste disposal facility without a permit, in violation of RCRA §3005, because the claim is for a wholly past violation. The language in the citizen suit provisions of the FWPCA and RCRA §7002(a)(1)(A) is identical, requiring plaintiffs to allege an ongoing or intermittent violation of the relevant statute. In this case there is no valid allegation of a present violation with respect to the plaintiff's FWPCA suit. The court also holds that the plaintiffs failed to state a valid claim that the defendant owns or operates a hazardous waste storage facility without a permit in violation of RCRA §3005. The definitions of "storage" in RCRA §1004(33) and 40 C.F.R. §260.10 do not include lead shot or clay targets, now scattered in waters of Long Island Sound, and which never have been contained or held. Turning to the plaintiff's RCRA §7002(a)(1)(B) claim that the lead shot and clay target debris in Long Island Sound createsan "imminent hazard and substantial endangerment," the court holds that the lead shot and clay targets have accumulated long enough to be considered solid waste, and the lead shot meets the statutory definition of hazardous waste due to its toxicity and its substantial threat to the environment. Finally, the court notes that the district court failed to decide that there was a genuine issue as to whether the clay targets were hazardous.

[The district court decision is published at 22 ELR 20483.]

Counsel for Plaintiff-Appellee
Robert F. Kennedy Jr.
Natural Resources Defense Council
40 W. 20th St., New York NY 10111
(212) 727-2700

Counsel for Defendants-Appellants
Mark R. Sussman
Murtha, Cullina, Richter & Pinney
City Pl., P.O. Box 3197, Hartford CT 06103
(203) 240-6000

Counsel for Amicus Curiae
James H. Warner, Ass't General Counsel
National Rifle Association
1600 Rhode Island Ave. NW, Washington DC 20036
(202) 828-6000