UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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CONNECTICUT COASTAL FISHERMEN'S ASSOCIATION,

Plaintiff-Appellee-Cross-Appellant,

- against -

REMINGTON ARMS COMPANY, INC. and E.I. DU PONT

DE NEMOURS AND COMPANY,

Defendants-Appellants-Cross-Appellees.

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QUESTIONS PRESENTED

1) Does § 309(b)(6)(A)(ii) of the Clean Water Act, which bars civil penalty actions when a state administrative civil penalty action is being diligently prosecuted under a comparable state law, bar a citizen suit seeking both civil penalties and injunctive relief when no state administrative penalty proceeding is ongoing and when a previously issued state administrative order assessed no penalties and was issued pursuant to a statute that does not allow for the assessment of civil penalties and does not provide for public comment or public right to a hearing and is not diligently prosecuted and is not issue pursuant to the Department of Environmental Protection's delegated Clean Water Act program?

2) If § 309(g)(6)(A)(ii) presents any barrier to this citizen suit action, does it bar the citizen's claim for injunctive relief when it limits only "civil penalty action[s]"?

3) Did the District Court correctly find that spent lead shot at defendants' facility is a hazardous waste under the Resource Conservation and Recovery Act?

STATEMENT OF THE CASE

Connecticut Coastal Fishermen's Association appeal from the decision of the United States District Court for the District of Connecticut (Burns, J.) granting, in part the motion of the Fishermen for partial summary judgment and denying defendants, Remington Arms Company, Inc., in part motion for summary judgement and motion to dismiss. In granting defendants' motion to dismiss plaintiff's Clean Water Act claim the Court erred in deciding that it lacked jurisdiction to hear plaintiff's claims because the DEP's order against the defendants' facility constituted "diligent prosecution" under a state statute comparable to the Clean Water Act. Defendants appealed from the District Court's denial of its motion for summary judgment on plaintiff's RCRA claim.

A. THE LORDSHIP POINT FACILITY

The Fishermen's Association is a non-profit corporation of conservationists and commercial and recreational fishermen whose members are adversely affected by defendants' operation of a Long Island Sound shooting club.

Since approximately 1926, the defendants, Remington Arms Company, Inc. and its predecessors have operated a trap and skeet shooting club (the "Gun Club" or the "Facility" or the "Club") on Lordship Point in Stratford, Connecticut. Rec. No. 4, Ex. 16, p. 1. The Facility is open to the public and supplies and services 40,000 shooters per year. Each year the "Great Eastern" tournament shoot is held at the Facility. Among the largest trapshoots in the country, the Great Eastern accounts for significant fraction of the annual shots fired at Lordship. App. 120; Rec. No. 3, Ex. 6. Remington has no state or federal permit authorizing water pollution discharges from the Lordship Point Facility. Rec. No. 4, Ex. 32, p. 4, para. 6.

Lordship Point is the southernmost boundary of the Housatonic Delta. To the North, directly across the Housatonic channel is the state wildlife refuge at Nells Island Marsh, which is critical habitat to one of the largest populations of Black Duck in Connecticut. App. 127. Hundreds of birds from at least 25 species of waterfowl and shorebird commonly use the waters and shore of the Gun Club for feeding and resting. Battelle Study, Dec. 30, 1987, App. 197, 198, Ex. 8; Bull Study, 1978, App. 146.

Trapshooting is the sport of shooting with shotguns at artificial targets (targets) thrown to simulate the flight of a bird. An electronic and spring operated trap machine concealed inside the trap house throws the targets. Trap and skeet shooters using the Remington Facility fire ammunition at targets hurled from machines located on the 12 cement-block trap and skeet fields at Remington's Facility. Photograph and Diagram, Rec. No. 4, Ex. 7. Since the trajectories of the targets are almost always oriented toward the water, large amounts of shot, plastic wadding and targets have fallen into the Housatonic River and Long Island Sound and onto Remington's adjacent shoreline.

Defendants provide ammunition, targets and shotguns for skeet and trapshooting. Some shooters provide their own shotguns and ammunition. All targets thrown at the Gun Club are purchased by shooters from Remington.

B. LEAD DEPOSITS AT LORDSHIP POINT

Since 1928, millions of rounds of lead shot have been fired from the Facility's trap and skeet stations. Prior to closing, defendants discharged more than two million rounds of ammunition annually totalling over 70 tons of lead per year every year since 1976. App. 121-122. Remington estimates that between 1,500 and 2,200 tons of lead shot have been fired at the Remington Gun Club since it opened. Preiser Affidavit, App. 122; App. 207. During 60 years of operation, no effort was made to remove shot from the site. Rec. No. 35, (EXHIBIT #???????), p. 5.

Spent ammunition has been deposited on the Facility's property above the mean high tide line and discharged into the waters of Long Island Sound and the Housatonic estuary both above and below the mean high tide line. Lead shot is visible around much of the perimeter of the Facility. App. 371; App. 201. Samples taken from sediments around the Facility indicate the presence of sediment lead levels of up to 640,000 parts per million (ppm) (64% lead). App. 13. The Battelle Study found that dissolved lead concentrations in the pore water around Remington exceeded background levels by 30 times and exceeded EPA's chronic water criterion. App. 212. A 1978 study conducted by the Connecticut Audubon Society showed accumulations of lead in Connecticut waterfowl, particularly mallards and Black Ducks from the Remington Gun Club vicinity. App. 138. The defendants' own Black Duck Blood Study shows 54% of the ducks using the site had acute lead poisoning. App. 217. Many of these ducks ingested fatal levels of lead but had not yet expired. A single pellet of lead shot, ingested, is sufficient to kill a duck. App. 279, p. B-4. Battelle's suggests that other birds that use Lordship, including Geese, Rails and Sandpipers would also be exposed to toxic doses of lead. App. 220. According to the same study Blue Mussels in the area are accumulating lead levels as much as sixteen times higher than in animals collected from the reference station in the mouth of the Housatonic. App. 220. "Samples of other organisms were not collected as originally planned [by Battelle] because the accumulation of lead in the tissues of mussels and [Black] ducks was sufficient to indicate a lead contamination problem requiring remediation of Lordship Point." App. 288.

Remington has known for at least 10 years that lead shot was harmful to waterfowl (App. 325) and has advised the public regarding the dangers of trapshooting over water in areas where ducks feed. Letter from Remington's Chief Patent Counsel Skouran, Nov. 7, 1980, Rec. No. 4, Ex. 18. Remington has received complaints about discharges from the Facility since at least 1978. App. 332. The deleterious effects of lead shot upon waterfowl has been common knowledge in the hunting and shooting community since at least as early as the 1950's. Rec. No. 4, Ex. 18. See also, Weyrach, "Waterfowl and Lead Shot" 16 Northwestern Environmental Law Review 883, 892 (1986), Rec. No. 14, Ex. 5. As early as 1978, a study by Audubon biologist Mylan Bull described the serious impact which Remington's activities were having on waterfowl populations in the Nells Island Wildlife Refuge. App. 138. Despite the fact that Remington was aware of this study (Rec. No. 4, Ex. 16, p. 4, para. 15) and had steel shot available for trapshooting, Remington continued to use lead shot in one of the most heavily utilized waterfowl areas of Long Island Sound.

Lead shot also contains high levels of arsenic and antimony which are listed as hazardous wastes under 40 C.F.R. 261.24 of RCRA. App. 283.

C. TARGET DEPOSITS AT LORDSHIP POINT

Remington's analysis of its own records show that 48 million targets have been thrown from the Facility since 1926, and almost half of these since 1976. Preiser Affidavit, App. 121. At an average 3.75 ounces each, almost a half million pounds of targets have been discharged annually since 1976. An estimated 11,250,000 pounds are discarded around the Facility. Target debris is visible along the shoreline and in the intertidal and subtidal zones. App. 371-372. Remington has never attempted to clean up the target debris from its Facility. Rec. No. 35, Ex. 33, p. 5. This target debris is toxic. (Rec. No. 4, Ex. 17, Skovran Letter, May 2, 1980, and Lewis Letter, July 16, 1968). Each box of Remington targets is scored in large black letters with the warning, "Do not throw targets where hogs feed. The pitch necessary in target production is toxic to hogs." App. 151. Remington's target boxes have been scored with this warning for 40 years. Rec. No. 4, Ex. 17. (John Lewis to David Schoneweis, D.V.M., Jul. 18, 1968).

According to defendants' own documents Remington targets are now composed of 33% petroleum based pitch (Rec. No. 4, Ex. 17, Lewis letter, July 18, 1968) or coal tar pitch and contain toxic heavy metals including arsenic, beryllium, cadmium, copper, nickel, silver and zinc. "These substances are listed on the U.S. EPA Effluent Guidelines as priority pollutants." App. 393. The target materials are partially composed of highly carcinogenic polycyclic aromatic hydrocarbons which are listed as hazardous substances under RCRA (Rec. No. 8, Ex. F, p. 4). The paint used on some Remington targets contain high levels of lead and possibly arsenic. Rec. No. 4, Ex. 17, Lewis letter, April 17, 1969 and Schoenweis Letter, June 28, 1968, Ex. 17.

D. DEP'S INVOLVEMENT AT LORDSHIP POINT

On May 10, 1985 DEP visited and investigated the Remington Facility taking samples of sediments and shellfish. App. 95-96. Even though the test results indicated elevated levels of lead, DEP did not order Remington to cease its discharges of lead or other materials in order to obtain a CWA permit. Instead, DEP made arrangements to meet with Remington to discuss issuing an order to "study the impact of the gun club activities on the surrounding aquatic environment." App. 96, - 353.

On August 19, 1985, the Connecticut Department of Environmental Protection (DEP) issued order No. WC4122 to Remington requiring it to study the effects of lead shot fired from the Gun Club on the sediments, aquatic life and waterfowl of Long Island Sound and to take necessary remedial measures. App. 96, para. 12; App. 101-102. DEP issued the 1985 order under Chapter 446K of the Connecticut General Statutes Sections 22a-5, 22a-6, 22a-432 and 26-3. App. 101. According to DEP, the Order was not issued under DEP's delegated CWA authority. App. 355, para. 16. The Order required that remediation of the site be completed by Aug. 31, 1986. App. 101.

The DEP Order did not require Remington to stop discharging lead or other ammunition over water. The Order did not require Remington to stop throwing targets over water. The Order did not require Remington to evaluate the impact of target materials on aquatic organisms, sediment or waterfowl. The Order did not require Remington to obtain a National Pollution Discharge Elimination System (NPDES) permit for its lead and other polluting discharges from the Facility as required by the CWA. App. 101, 362. Defendants' discharges of lead and other materials continued.

On April 10, 1986, the Connecticut Coastal Fishermen's Association, then Connecticut Coastal Sportsmen Association, mailed a letter of Intent to Sue to the defendants pursuant to § 1365 of the CWA and § 7002 of RCRA to inform the defendants that plaintiff intended to sue Remington for unpermitted discharges of ammunition, lead, targets and other materials in violation of § 1365 of the CWA and for associated violators of RCRA. App. 107-109.

Pursuant to the 1985 DEP Order, Remington contracted with Energy Resources Company (ERCO) of Cambridge to conduct the study of lead impacts on the estuary. More than one year later, Remington presented the report to the DEP on July 2, 1986. App. 97, 154. ERCO found sediments contaminated up to 640,000 ppm. App. 154-157. The sediment levels alone put the Remington Facility among the most contaminated sites in America, perhaps the world. ERCO found elevated lead levels in cord grass, mussels and oysters collected from the area (Rec. No. 4, Ex. 10, pg. 25-26). As a result of these findings DEP officials on October 24, 1986 issued a modified order which allowed Remington to continue its lead discharges from the site until December 31, 1986 (App. 354, 365) and ordered defendants to identify remediation options for the lead shot accumulations by December 31, 1986. App. 364-366. DEP Commissioner Stanley Pac subsequently released a public letter referring to the order and encouraging defendants to continue operations using steel shot. In his letter, Commissioner Pac states that DEP has "not curtailed shooting and have, in fact indicated that steel shot could be used in place of lead shot." App. 454. Since the CWA does not distinguish between lead and steel discharges (both are illegal) Pac's letter was sanctioning defendants' violation of the Act. DEP's principle consideration was apparently to preserve Remington from inconvenience on financial loss and to keep them open at all costs. Under the order, Remington would continue to discharge lead until the end of the winter shooting season and then in the slow month of January refit the club for steel shot in time to reopen for spring shooting season. The modified order ignored the fact that the site was not remediated by August 31, 1986 as required by the original order.

Because the ERCO study was incomplete, Remington engaged Battelle Ocean Studies to undertake environmental studies to analyze the effects of lead deposits and potential remediation options. On January 1, 1988, Battelle released its study which demonstrated serious environmental impacts from Remington's discharges including deadly contamination of waterfowl, shellfish, sediments and the environment. App. 160.

To date, no order issued by DEP has required Remington to (1) close the site; (2) stop all shooting at the site; (3) stop discharging targets into the Housatonic or Long Island Sound; (4) obtain a Clean Water Act fill or discharge permits prior to discharging lead or steel shot or targets into Long Island Sound. Nor has DEP scheduled complete removal of target material from Remington's property, the shoreline, or the estuarine waters. On the contrary, DEP's position has been to encourage Remington to reopen the site so long as substitute shot was used for lead (e.g. App. 454). J J J J J BOBBY - IS THIS TRUE CONSIDERING THE 8/91 LETTER AND MASON'S STATMENT TO ME THAT REMINGTON WILL PROPOSE A STANDARD TO REMOVE THE TARGETS FROM ABOVE THE MEAN LOW WATER?? J J J J J J

After filing its Notice of Intent to Sue on April 16, 1986 the plaintiff continued to closely and persistently monitor the activities of the state DEP, defendants and defendants' consultants. Plaintiff had two concerns; first, that all discharges into the estuary be terminated and second, that the sediment be thoroughly remediated and that all the defendants' materials including target materials, wadding and lead shot be removed. Plaintiff's attorneys and representatives spoke and met regularly with DEP officials (App. 97; 353-354) as well as defendants and their consultants to pursue these objectives. Kennedy Affidavit, para. 25, App. 345; Mason Affidavit, para. 14, App. 97; Nixon Affidavit, paras. 8, 10, App. 128, 129. During the course of these meetings, it became evident to plaintiff that DEP considered this site a political hot-potato and was unwilling either to order defendants to stop discharging or to compel Remington to clean up its toxic target debris. For this reason, DEP was unwilling to consider Remington's discharges or Clean Water Act violations since the Clean Water Act would have compelled both closure and target clean up. Plaintiff delayed filing this complaint pending the outcome of defendants' study.

However, on April 2, 1986 Remington and their consultant announced at a public workshop attended by that, with DEP approval, an evaluation of target materials would not be part of the company's study or remediation work plan. App. 345, para. 25. The work plan proposed by Remington and approved by DEP flew in the face of the Clean Water Act and plaintiff's tenacious and persistent efforts to compel defendants to remove its toxic target accumulations. DEP's endorsement of the work plan confirmed the plaintiff's worst nightmares about the relationship between defendants and the agency. According to the proposal, defendants would dredge the sediments from the affected areas of Long Island Sound and the Housatonic, violently jig out the lead pellets with a mineral jig (App. 261) and then discharge the remaining sediments, including a toxic brew of dissolved lead and the now pulverized target materials back into Long Island Sound and the Housatonic. (CITE AND GET BETTER LANGUAGE FROM PRIOR DOCUMENT).

Despite almost constant badgering by plaintiff and other environmental groups. The DEP refused to change its position to require defendants to investigate the environmental impacts of dredging, pulverizing and then discharging thousands of tons of the target materials into the estuary.

Five days after Remington announced its agreement with DEP, Remington confirmed in a newspaper announcement that the Gun Club would soon reopen using steel shot. The club was scheduled to reopen for the first public shoot on May 30th and 31st and to host the Great Eastern, the year's largest shoot the third week of June. Remington Memo from Callahan, April 24????, 1987, App. 305????

At this time, plaintiff made its decision to proceed with its lawsuit and filed its complaint. CCFA Complaint, Apr. 24, 1987, App. 8.

On April 24, 1987, three weeks after the meeting with Remington and two weeks after the press announcement, the Fishermen's Association filed its complaint against Remington.

The Fishermen's complaint alleged that the discharges from the Remington Gun Club were "on-going." CCFA Complaint, Apr. 24, 1987, para. 18, Ex. 36. This allegation was made in good faith within the context of the facts existing at the commencement of the action. Backer Affidavit, para. 11, Ex. 1; Nixon Affidavit, para. 15, Ex. 2.

Pursuant to the DEP's modified order defendants suspended their discharges of lead at the Remington Gun Club on December 31, 1986. However, the club closure was only intended to be temporary, to allow the club time to retrofit its trap buildings with ricochet resistant siding so that the club could reopen for steel shot in the spring. Remington Memorandum, Apr. 8, 1987, App. 302. The club offices remained open and shooting resumed after only one month with steel shot at the site. Preiser Affidavit, App. 122. Remington personnel continued discharging targets and ammunition until plaintiff filed its complaint on April 24th, 1987. Preiser Affidavit, App. 122; Defendants' Answers to Plaintiff's Interrogatories, para. 1(i), Rec. No. 35, p. 64. It is uncontested that defendants fully intended to reopen the Gun Club to the public without a NPDES permit to discharge steel shot and targets into the water. Remington widely publicized its intention to reopen the Facility using steel shot by June of 1988 with DEP's blessing. E.G., Bridgeport Sunday Post, Dec 28, 1986; Bridgeport Post, Jan 26, 1987; Bridgeport Post Apr. 7, 1987, App. 321-324; App. 132. It is also uncontested that Remington closed the Gun Club only because CCFA filed its lawsuit.

DEP's position has been to encourage Remington to resume its unpermitted discharges at the site so long as substitute shot was used for lead and to ignore the discharge and the effects of target material altogether.

Although the Fishermen's Association repeatedly and strongly urged Remington officers and the DEP to study the impact of the targets on the aquatic environment and upon the remediation alternatives, no mention of the targets is made in the final Battelle report. Battelle Study, Dec. 30, 1987, App. 160. DEP did finally respond to the Fishermen's concerns on September 9, 1988 by directing Remington to study the effects of PAHs on the environment. DEP Letter from Richard Mason, App. 456. On August 30, 1991, as a result of the study released on February 9, 1990, DEP further required Remington to remove clay target fragments from the beach surface above mean low water to "establish a clean-up standard for removal of target fragments during remediation" and to submit "a proposed removal of target fragments to the clean-up standard." Richard Mason Letter, App. 551. However, to date, over 11 million pounds of target materials still remain in the estuary in and around the Remington site and Remington still has not submitted a plan to address those materials.

Seven years after DEP issued its first order asking Remington to study and remediate the site by August 1986, not one pellet of shot or one shard of target material has been removed from this site.

E. THE LAWSUIT AND THE DECISION BELOW

The Fishermen's Association amended and refiled this complaint on October 21, 1987. Amended Complaint, Oct, 21, 1987, Ex. 37. Their amended complaint alleged that defendants were violating § 301 of the Clean Water Act by discharging shot, targets and wadding into Long Island Sound and the Housatonic and that the unremediated accumulations of shot and target debris in these waters constituted a continuing violation of § 301.

Plaintiff further alleged that the lead shot and target materials on and around defendants' Facility were hazardous waste under RCRA and that therefore the defendants' Facility is a hazardous waste disposal Facility subject to permitting and other requirements under RCRA.

Plaintiff's complaint sought declarations that defendants had violated and were violating applicable Clean Water Act and RCRA sections, orders compelling Remington to remove its waste from the river and Sound and remediate the environmental damages caused by its activities, civil penalties and attorney's fees.

Remington moved for summary judgment on November 30, 1987 seeking dismissal of the suit. App. 2-45-48.

The Fishermen cross-moved on March 11, 1988 for partial summary judgment under the two federal statutes. App. 2, 56. The district court heard oral arguments on the cross motions for summary judgment on December 19, 1989. App. 505. On September 11, 1991, the district court issued its ruling. App. 64. The court held that it lacked jurisdiction on plaintiff's CWA claims because the DEP had commenced and was diligently prosecuting an action under a state law comparable to the CWA.

The court furthermore held that spent lead shot and target debris at defendants' Facility were solid wastes under RCRA and that the lead shot was a hazardous waste subject to permitting and other regulations under RCRA. The court found that there was a disputed issue of fact as to whether target debris was hazardous waste and denied plaintiff's summary judgment on the issue of whether targets should also be subject to RCRA.

Defendants filed for interlocutory review of the District Court's RCRA holding by this Court on November 22, 1991. Plaintiff cross appealed on the District Court dismissal of its Clean Water Act claims also on November 22, 1991. The lower court certified the decision for interlocutory review on November 14, 1991 and plaintiff's and defendants' petitions to appeal were accepted by this court on February 11, 1992.

STANDARD OF REVIEW

On appeal of a grant of summary judgment, this Court conducts a plenary review, applying the same standard of review as that applied by the district court. Viacom International Inc. v. Icahn, 946 F. 2d 998, 1000 (2d Cir. 1991), cert. denied, 60 U.S.L.W. 3581 (1992); Bersani v. Robichaud, 850 F. 2d 36, 46 (2d Cir. 1988), cert. denied sub nom. Bersani v. United States EPA, 489 U.S. 1089 (1989).

Statutory Background

In 1972, Congress enacted the Clean Water Act (CWA) with "the national goal that the discharge of pollutants into the [nation's] navigable waters be eliminated . . . ." 33 U.S.C. § 125(a)(1) (1988). To accomplish this goal, the CWA prohibits the unpermitted discharge of all pollutants from point sources into the waters of the United States. 33 U.S.C. § 1311(a). Section 1362(6) defines "pollutants" to include "munitions." The Supreme Court held in Weinberger v. Romero-Barcelo that § 1311 forbids the unpermitted discharges of munitions from guns into water. 456 U.S. 305, 314 (1982). Defendant's unpermitted discharges of munitions and target materials and wadding are therefore also forbidden by the CWA. The unpermitted discharge of fill material is also prohibited by §§ 1311 and 1344 of the CWA. The courts have treated discharged fill material (i.e., targets) as a continuing violation of the CWA until such time as the material is removed from the water. North Carolina Wildlife Federation v. Army Department, 29 E.R.C. 1941, 1943 ("Defendants' failure to remove improperly discharged material constitutes a continuing violation" of the CWA.).

Section 1365 of the CWA, the citizen suit provision, allows citizens with standing to step into the shoes of the United States Attorney General and bring a lawsuit for penalties and injunctive relief when the state or federal enforcement agencies have failed to diligently prosecute a violation of the Act.

The district court granted Remington's motion for summary judgement based on an erroneous interpretation of 33 U.S.C. § 1319(g)(6)(A) of the CWA. J J J J J CITE DIST. CT. DECISION RCRA DISCUSSION HERE J J J J J J . That provision puts a narrowly circumscribed limitation on a citizen's authority to pursue a civil penalty action. It provides, in relevant part, that "any violation ... with respect to which a state has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty action under ... section 1365 [the citizen suit provision] of this title." Id. § 1319(g)(6)(A). Thus, for § 309(g) to preclude a citizen's civil penalty suit, the party relying on § 309(g) must demonstrate all of the following: (1) the state proceeding on which it relies is an administrative penalty action;

(2) the state action has commenced and is being diligently prosecuted;

(3) the state action is proceeding under a state law that is "comparable" to § 309(g); and

(4) the action that it seeks to bar is a civil penalty action.

Examining each of those elements in turn, it is apparent that the district court erred in finding that it lacked jurisdiction to entertain the Fishermen Associations's citizen suit in this case.

Section 309(g)(6)(A)(i) precludes civil penalty actions for violations with respect to which the Administrator "has commenced and is diligently prosecuting an action under this subsection." 33 U.S.C. § 1319(g)(6)(A)(i). The "this subsection" to which the text of § 309(g)(6)(A)(i) refers is entitled "Administrative penalties," and thus any "action" being "diligently prosecut[ed]" under that subsection would involve administrative penalties. Moreover, the text of § 309(g)(6)(A)(iii) confirms that Congress intended § 309(g)(6)(A)(i) to mean exactly what it says. The former provision applies only when there has been a "penalty assessed." It would, therefore, be very odd to preclude suits by citizens or EPA during the course of an ongoing administrative action that does not seek such a penalty. In other words, reading § 309(g)(6)(A)(i) in pari materia with the bar imposed???? by a completed action in which penalties have been assessed and paid under § 309(g)(6)(A)(iii), it must refer to a diligent prosecution seeking administrative penalties.

On August 19, 1985, the DEP issued the Administrative Order No. #WC4122 against Remington under Conn. Gen. Stat. §§ 22a-5, 22a-6, 22a-432 & 26-3. DEP subsequently modified that order on October 24, 1985. J J J J J WRONG DATE J J J J J J Administrative Order No. WC4122 Modified did not assess or contemplate the payment of any civil penalties. Instead, it required Remington to undertake studies and remediation. App. 103-104. Although DEP has authority to bring an administrative penalty action under a parallel????? section of the Connecticut General Law, DEP brought this action under a Connecticut law that does not provide for civil penalties. Therefore, under the plain meaning of the statute, DEP's Order cannot preempt the Fishermen's federal lawsuit.

The district court's decision glosses over the fact that no administrative penalty proceeding has commenced against Remington. The district court held that the DEP's enforcement of Administrative Order No. WC4122 Modified constitutes "diligent prosecution," 777 F. Supp. at 185, App. 76, without addressing whether it constitutes diligent prosecution of an administrative civil penalty action as the statute requires. 33 U.S.C. § 1319(g)(6)(A)(ii). In its failure to ascertain the type of enforcement action that the DEP is alleged to be diligently prosecuting, the district court relied on North and South Rivers Watershed Ass. v. Scituate, 949 F.2d 552 (1st Cir. 1991). The Scituate court explicitly acknowledged its decision was contrary to the literal language of the statute. Id. at 559. That court's substitution of its own policy choices for those of Congress is wholly inappropriate. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 107 (1980).

Section 309(g) provides that there shall be no limitation on actions for civil penalties unless, for the violations at issue, the state is prosecuting an action "under a State law comparable to this subsection." § 1319(g)(6)(A)(ii) (emphasis added). Before comparing the Connecticut statute, we must examine the requirements of § 309 and their purpose. Under § 309(g), EPA is required to provide public notice of the proposed order and an opportunity to comment on the order. 33 U.S.C. § 1319(g)(4)(A); to hold a hearing on the proposed order, at which interested parties are allowed to present evidence, or, if it denies a petition to hold such a hearing, publish in the Federal Register its reasons for such denial. Id. § 1319(g)(4)(B) & (C); see generally 56 Fed. Reg. 29,996 (July 1, 1991). In contrast, none of these procedures is required prior to the imposition of an administrative compliance order under Connecticut Statute § 22a-432.

Section 309(g)'s procedures are designed to ensure that interested citizens have an opportunity to contest any inadequate administrative penalties. See S. Rep. No. 99-50 at 27, reprinted in Legislative History of the Water Quality Act of 1987 (1988) at 1448 ("There are several safeguards in this provision to prevent abuse of the administrative penalty authority, such as significant violators escaping with nominal penalties."). Public participation in the assessment of administrative penalties is critical to the statutory scheme precisely because the Act prohibits subsequent civil penalty actions by EPA or citizens once such a penalty has been imposed. Thus, if the decision of this district court is allowed to stand, an administrative compliance order not subject to public scrutiny could insulate a defendant from ever having to pay penalties for its violations. For these reasons, Congress required that state laws cannot preempt federal lawsuits by EPA or citizens unless the state statute provides "comparable" protection;

Stamping Co., Inc., 735 F.Supp. 1404, 1415 (Ind. 1990). 133 Cong. Rec. S737 (daily ed., Jan. 14, 1987); see also, Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1136 (1985).

The district court ignores the fact that none of these procedures are required prior to the imposition of an Administrative Compliance Order under Connecticut General Law § 22a-432 and holds that similar elements in other Connecticut Laws made the law "under which the DEP is proceeding comparable to 1319(g)." 777 F. Supp. at 183, App. 74, The Judge's conclusions are contrary to the language and purpose of the act. Whether public notice and participation, judicial review and penalty assessments are available elsewhere in the Connecticut statutes, they were not afforded to plaintiffs in this lawsuit.

Furthermore, the district court demonstrates its misunderstanding of Connecticut law when it chides plaintiffs for not intervening in DEP's action against defendants. Such a right does not exist under applicable Connecticut law. While Connecticut law liberally allows intervenors in environmental "proceedings," Conn. Gen. Stat. § 22a-19 (1985), DEP's action here was not a "proceeding" within the meaning of that statute. DEP drafted its pollution abatement order under Connecticut General Law § 22a-432.

There was no complaint filed. There was no public notice that a proceeding was under way. There was no hearing or opportunity to submit testimony or cross examine witnesses. There was no legal forum in which plaintiffs could make arguments or from which they could appeal. Even if the Fishermen were legally able to intervene in DEP's order, it would have had no right to a hearing. Although Judge Burns correctly notes that Connecticut law provides a right to a hearing and judicial review in enforcement proceedings, 777 F. Supp. at 183, App. 74, that right accrues only to the polluter, not an intervenor. Conn. Gen. Stat. §§ 22a-432, 22a-436.

The District Court found that it lacked jurisdiction to hear plaintiff's CWA case because a 1985 order by the DEP requiring study and remediation of the site constituted diligent prosecution under state law comparable to the federal program. 777 F. Supp. at 185-186, App. 76-77. However, a careful review of DEP's order shows that it has been anything but diligent.

Courts have found prosecutions to be less than diligent when consent orders have not achieved compliance or remediation or when the agency granted repeated extensions of time. See Dague v. City of Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991)(no diligent prosecution under analogous provisions of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972, when state did not demand compliance with or assurance of discontinuance and granted respondents many extensions of time); New York Coastal Fishermen v. New York City Dep't of Sanitation, 772 F. Supp. 162, 166 (S.D.N.Y. 1991)(no diligent prosecution where two prior DEC orders from 1985 and 1990 have not yet remediated the site); Merry v. Westinghouse Electric Corp., 697 F. Supp. 180 (M.D. Pa. 1988)(citizen suit was not barred by "diligent prosecution" where defendant had not complied with agency's consent order within established time limits, and where agency had not responded to tardiness); and Public Interest Research Group of New Jersey v. Top Notch Metal Finishing Corp., 26 E.R.C. 2012, 2014 (D.N.J. 1987)(neither the issuance of a draft permit extending the terms of an expired permit nor an unsigned proposed compliance order constitute "diligent prosecution"); or if the agency's actions are "dilatory, collusive or in bad faith." Atlantic States Legal Foundation v. Universal Tool and Stamping, Co., 735 F. Supp. 1404, 1416 (D. Conn. 1986).

In Universal Tool and Stamping, Co., the court examined four factors and found there was no diligent prosecution on facts very similar to those at bar:

Id.

Applying the same four factors to the present case, it is clear that DEP's relationship with defendants here did not constitute "diligent prosecution."

1) The state was willing to bend its procedures on Remington's behalf.

In the instant case, the DEP has repeatedly bent its own procedures and the federal CWA to suit defendants' own convenience. Even before DEP issued its order, the agency ignored a flagrant CWA violation by a politically powerful state industry for many years. App. 99; Preiser Affidavit, App. 132. The DEP allowed defendants to disobey laws for which other Connecticut industries would presently face high fines or imprisonment. The company was discharging 70 tons of lead each year - one of the most lethal, and (after nuclear waste), the most highly regulated toxic substance known to man. Rec. No. 1 p. 26. Defendants' target discharges are so toxic that shipping containers are scored with warnings to keep away from animals. App. 130. With DEP's full knowledge, approximately 340 tons of lead and toxic targets accumulated in the waters of a fragile estuary in a major waterfowl staging area, a public bathing beach and heavily utilized oyster fishery. Fish were poisoned, plants and shellfish were contaminated. Battelle Study, App. 220, 228. Half the ducks in the area, including threatened species, experienced acute toxicity. App. 217. The DEP ignored the chorus of health, environmental, various community groups and Audubon Society's comprehensive report tracing the area's high black duck mortality to defendants discharges.

Finally on August 19, 1985, 13 years after the CWA's passage and seven years after the Audubon report, the DEP, in August 1985, ordered defendants to "study" the lead contamination problems at Lordship Point. The order did not require defendant to cease its illegal discharges or to obtain a permit as the CWA required, or as DEP presumably would have required any other discharger of this magnitude. There was no penalty.

Fourteen (????????) months later on October 24, 1986, under pressure of CCFA's lawsuit and defendants' study, distinguishing its property as one of the most contaminated in America, DEP broke down and ordered Remington to stop using lead. This special consideration was most extraordinary given the alarming level of environmental damage disclosed by DEP's and defendants' initial studies and the sheer magnitude of Remington's toxic discharges. It is a good bet that during its 14 month grace period, Remington discharged more lead into Long Island Sound than all the permitted discharges in Connecticut combined! They allowed the company to continue discharging lead an additional 2 months. App. 104. DEP extended this courtesy to allow the company to continue operations into their slow season. Remington could then retrofit for steel shot in time for the spring shooting season. Preiser Memo, App. 300, 306, 309.

DEP's sanction and encouragement of the reopening of the club with steel is perhaps the most baffling and brazen element of the relationship. DEP Commissioner Stanley Pac sent an obsequious form letter to interested persons stating the DEP's position that "[DEP has] not curtailed shooting and [has] in fact indicated that steel shot could be used in place of lead shot." App. 454.

If plaintiff's lawsuit had not forced the club to close, defendants would, with DEP's blessing, continue to discharge 270 tons of highly toxic target materials into the estuary annually and close to 70 tons of steel shot - the equivalent of 70 automobiles. Conceding that steel shot is preferable to lead, such high volume discharges of any material is clearly harmful to the estuary. Most significantly, the CWA prohibition against discharge of pollutants makes no distinction between lead and steel. Both are "pollutants" under § 1362(6). The unpermitted discharge of either is illegal.

Even after plaintiff forced the Gun Club's closure, DEP's collusive relationship with Remington has allowed defendants to escape the consequences of their illegal conduct. Many thousands of tons of toxic target materials still lie on the shore and in the estuarine waters. The existence of these materials constitutes a continuing violation of the CWA. North Carolina Wildlife Fed'n. v. Army at 1943. Currently there is no plan to remove these toxic pollutants from Long Island Sound.

DEP's August 1986 modified order ignored defendant's failure to comply with the original order's mandate to remediate the site's lead deposits by August 31, 1986. By August 31st, 1986 no remediation of lead had occurred. As of this date, 7 years later, not one pellet of lead nor one target shard has left the site.

2) Remington continued to violate the CWA long after the administrative proceeding was commenced.

With DEP's blessing, Remington continued to discharge lead shot from its Facility for a full 18 months after the August, 1985 order and for 5 months after the August, 1986 modification. With DEP's blessing, defendants discharged steel shot and targets until April 24th, 1987, more than two years after the original order. To this date, seven years after the order, thousands of tons of lead and shot and target debris remain in the water and continue to violate the CWA. See North Carolina Wildlife Fed'n. v. Army at 1943.

3. DEP's penalty assessment was lenient.

The court in Universal Tool characterized the state's $10,000 penalty assessment as lenient. In the instant case there was no penalty assessed for the thousands of violations despite statutory authority for penalties of $25,000 per violation.

4. The company acknowledges that it was defendants' complaint, not the state's proceeding that moved it to take steps to comply with the Act.

In the instant case, it is undisputed that plaintiff's complaint rather than any action by DEP forced defendants to stop discharging from the site. Judge Burns' conclusion that the club was permanently closed pursuant to DEP's order, 77 F. Supp. at 185, App. 76??????????????? (page 26) is simply wrong. While DEP eventually ordered defendant to cease discharging lead, it at all times encouraged the defendant to continue discharging targets and steel. If it were up to the DEP, the club would still be discharging today. These facts are undisputed.

There is still no order scheduling removal of and thousands of tons of lead shot remain on the site unremediated despite DEP's 1985 order requiring the defendant to remediate the lead by August, 1986. To date, no action by DEP has required the defendant to remove target materials from the site. Since it is disputed whether targets qualify as hazardous waste under RCRA, the target debris may remain in Long Island Sound forever absent this action by the Fishermen. See also, Atlantic States Legal Found. v. Eastman Kodak, 933 F.2d 124, 127 (2d Cir. 1991) (environmental group could continue to pursue CWA citizen suit notwithstanding defendant's settlement with state official if realistic prospect of continuing violations existed).

Taken together, these factors add up to a prosecution that, at best, is less than diligent.

5) DEP's action is non-diligent per se since it was not enforcing the Clean Water Act.

From its first reluctant involvement to the present, DEP has steadfastly maintained that defendants were not violating the CWA and that its order was under state law distinct from its delegated CWA powers. Mason Affidavit, App. 355. In the present case, all of the agency's actions have been consistent with the application of state as opposed to federal law. DEP knowingly ignored Remington's CWA violations for many years. DEP refused to order Remington to stop discharging or obtain CWA permits during its May, 1985 site inspection or in its April, 1985 or August, 1986 orders as the CWA would have required. Reason dictates that enforcement of a state statute that does not require compliance with federal regulations, will not preempt a lawsuit under federal law. In reviewing analogous cases, the courts have agreed. Dague v. City of Burlington, 935 F.2d 1343, 1353 (2d Cir. 1991) (no diligent prosecution where state action was not "an action to compel compliance with federal regulations). See also, Hudson River Fishermen v. O'Rourke, 686 F. Supp. 1044, 1052-1053 (S.D.N.Y. 1988)(government enforcement action under predecessor statute to the CWA does not preempt citizen suit addressing CWA violations because ultimate resolution of the government case might not cure this particular discharge). United States v. Cargill, Inc., 508 F. Supp. 73 (D.Del. 1981)(EPA allowed to sue under CWA in federal court despite the existence of a pending suit filed by state Department of Natural Resources seeking identical relief in state court. The EPA Administrator found the state action unsatisfactory in two respects: 1) compliance with a proposed construction schedule was not mandatory, and 2) the proposed settlement penalty was deemed grossly inadequate). App. 355.

When plaintiff challenged DEP officials to explain under what authority they could allow the discharge of hundreds of tons of toxic pollutants into Long Island Sound, DEP responded that the agency did not regard these discharges as CWA violations. Mason Affidavit, App. 355; Kennedy Affidavit, App. 342. In October of 1986 DEP finally ordered Remington to stop firing lead from the Facility by December 31st. Mason Affidavit, App. 355. DEP admitted that it issued this Order pursuant to its enforcement authority under state law rather than its authority under the CWA. App. 355. Prior to issuing the modified order, Remington notified EPA that it intended to proceed under state law rather than the federal CWA. Id. EPA did not respond to this letter. Id. The state order did not require Remington to cease discharges from the Facility or obtain NPDES permits for its discharges. DEP Modified Order, App. 364. Instead DEP encouraged the defendant to continue to discharge with steel shot. App. 454. As of the present date, DEP has still refused to order Remington to remove target material from the water in compliance with the CWA.

DEP's order was non-diligent per se because it allows the polluter to escape application of federal law and standards. The issue cuts to the heart and purpose of the CWA.

In allowing shooting to continue at the site, DEP effectively granted defendants a discharge permit by administrative order, circumventing the hearing and permit process and avoiding the application of federally mandated discharge standards. Under this rationale, a discharger could be allowed to discharge pollutants with no permit indefinitely simply by agreement with a state agency; a polluter could leave thousands of tons of toxic pollutants in place by virtue of a consent order even though such actions violate the federal statute. A state agency could give a polluter permission to break federal law. Clearly 309(g)6 did not contemplate that citizen suits could be preempted by such actions.

Finally, it is important to note that § 309(g)(6)(A) only operates as a bar to "civil penalty actions," and does not bar plaintiff's claim for injunctive relief. This is clear from the plain language of the statute, which specifies that an administrative penalty action bars only "a civil penalty action." By its own terms, then, the statutory bar against federal court enforcement extends no further than to claims for civil penalties.

See also Public Interest Research Group of New Jersey v. Witco. Chemical Corp., 31 Envtl. Rep. Cas. 1571, 1576 (D.N.J. 1990)("[o]nly civil penalty proceedings are barred under section 309"). This conclusion is amply supported by the legislative history.

Differing versions of the CWA's administrative penalty provisions were drafted by the House and the Senate, and the Conference Committee drew language from both versions in drafting what is now § 309(g). The Conference Committee report notes that "the language on preclusion of citizen suits" was taken directly from the Senate Bill. Conference Committee report of the Water Quality Act of 1987, Oct. 15, 1986, H.R. Rep. No. 99-1004 at 139 (1986). The Conference Committee Report characterizes the preclusive effect of that language as follows:

Id. at 133.

In the present action, plaintiff seeks both declaratory and injunctive relief. Plaintiff seeks declaratory relief that defendant's discharges of shot, wadding and targets violate the CWA and that their failure to remove thousands of tons of deposited material from the estuary is a continuing violation of the CWA. Defendant (and the state DEP) dispute both these claims.

Plaintiff also seeks injunctive relief to remove accumulated target materials from the estuary and intertidal zones. DEP has steadfastly refused to order this remedy which plaintiff believes is consistent with and compelled by the CWA. Plaintiff requests a hearing on the form of the injunction.

As these claims are readily separable from any claim for civil penalties, it would survive even if § 309(g)(A) were applicable.

Defendants are in violation of the Resource Conservation and Recovery Act (RCRA) 42 U.S.C § 6925 (1988), for their failure to obtain permits for the treatment, storage or disposal of hazardous waste, and 42 U.S.C. § 7003 for creating an imminent and substantial endangerment to the environment at Lordship Point and to human health through the deposition of spent lead shot upon and around the Remington Gun Club property. Section 6972 empowers citizens to bring enforcement actions against persons alleged to be in violation of "any permit, standard, regulation, condition, requirement, prohibition or order which has become effective pursuant to [RCRA]." Id. § 6972(a)(1)(A). An affected citizen may bring this suit if prior notice is given to the violator and appropriate government agencies and if the alleged violation is not the subject of diligent enforcement by the state or federal government. Id. § 6972(a)(1). The Fishermen's Association satisfied all the statutory requirements in its citizen suit enforcement action against Remington for its violations of RCRA and is therefore entitled to summary judgment.

Consistent with the Congressional policy of "requiring that hazardous waste management practices [be] conducted in a manner which protects human health and the environment," RCRA § 1003(4), 42 U.S.C. § 6902(4), Congress mandated an elaborate system of classifying and regulating the nation's solid and hazardous wastes. That system begins by identification of materials which constitute such wastes. By definition, a substance must first be considered a solid waste in order to constitute a hazardous waste, RCRA § 1004(5). Solid waste is defined as:

RCRA § 1004(27), 42 U.S.C. § 6903(27).

Defendants do not contest that its Remington Gun Club constitutes both a commercial operation and a community activity. Defendants argue that the District Court erred first in finding that lead shot at the Facility is a solid waste and second, that therefore the shot cannot be a hazardous waste.

As a preliminary matter, once the lead shot passes or hits the artificial targets, the lead becomes discarded solid waste within the meaning of RCRA Section 1004(27) and 40 C.F.R. § 261.2. The regulations promulgated pursuant to RCRA § 1004(27) define solid waste as "any discarded material." 40 C.F.R. § 261.2(a)(1). "Discarded material" is further defined in 40 C.F.R. § 261.2(a)(2) as "any material which is either: (i) Abandoned . . . ; (ii) Recycled . . . ; or (iii) Considered inherently waste-like."

Of these, the most appropriate description of the millions of pounds of discarded lead shot at Lordship Point is "abandoned." According to Blacks Law Dictionary 2 (6th ed. 1990), abandonment is defined as "to desert, surrender, or to give up or cease to use." According to 40 C.F.R. § 261.2(b), abandoned materials are further defined as being any of the following: "(1) Disposed of; (2) Burned or incinerated; or (3) Accumulated, stored or treated . . . " In promulgating the regulations for determining which materials are "abandoned," EPA indicated that it did not "intend any complicated concept, but simply mean[t] thrown away." 50 Fed. Reg.614, 627 (January 4, 1985). American Mining Congress v. EPA, 824 F.2d 1177, 1193 (D.C. Cir. 1987) (AMC I).

In American Mining Congress v. United States Environmental Protection Agency, 907 F.2d 1179 (D.C. Cir. 1990) (AMC II), the D.C. Circuit found that industrial sludges which are collected in lagoons for potential reuse are "discarded" and therefore "solid waste."

These definitions describe the million of pounds abandoned at the Remington Gun Club. At the moment that the lead shot either passes or breaks the target, it stops being useful for its intended purpose. At that point, the shot and target fragments become discarded material. The deposition over sixty years of an estimated four million pounds of lead and considerably more target debris evinces a clear lack of intent by defendants either to reclaim or recover the material. In fact, defendants have abandoned the material to the sea and the shore. Despite its contention that lead shot and artificial targets are used for sport shooting and not as a method of disposing of waste, defendants' failure to state a purpose for the debris once the sport shooting is over suggests defendants intend it to be "abandoned" or "thrown away." At least one court has found that even commercially valuable products can be solid waste. In States v. BFG Electroplating, 31 Env. Rep. Cas. (BNA) 1174, 1180 (W.D.Pa. 1989), reh'g denied, 31 Env. Rep. Cas. (BNA) 1185 (W.D.Pa. 1989), the court held that contaminated cinder blocks later used to construct a coal bin and driveway constituted the disposal and release of solid and hazardous waste at the time of sale. Id. at __________________________. If reusable sludges or commercially valuable cinder blocks are "discarded" and "disposed" within the meaning of RCRA then how can spent lead shot which has been used and abandoned permanently to the sea and sediment be any less so?

Defendants' reliance upon Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), rev'd on other grounds, 643 F.2d 835 (1st Cir. 1981), aff'd sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), in support of its contention that deposits of lead and target debris are not solid waste is entirely misplaced. In that case the district court held that bombs dropped from planes did not constitute solid waste, but predicated its decision upon the fact that military operations are not included in the designated activities listed under the RCRA definition of solid waste. Barcelo v. Brown, 478 F. SUPP. AT 669. Id. at 669. In contrast, the waste at Remington was generated through "community activities" and "commercial operations" and is therefore subject to the statute.

Amici's contention that the Remington site is not a disposal facility because trap and skeet shooting is not a method of disposing of wastes J J J J J CITE AMICI BRIEF J J J J J J ignores the reality that few beneficial activities are ever designed to make waste. Plaintiff concedes that trap and skeet shooting is a recreational activity, not a means of waste disposal. But the predictable, observable and inevitable result of that activity is the production and disposal of solid and hazardous wastes from shot and targets. Sport shooting in this sense is no different from, for example, an electroplating facility, which as a by-product of its operation, creates a useless hazardous material, which is disposed of on site.

The District Court judge was correct in ruling that "the EPA has not determined that trap and skeet shooting does not produce solid or hazardous waste subject to RCRA." Dist. Ct. at 30. Defendants are well aware that EPA has treated shooting ranges as hazardous waste facilities since the EPA has brought a RCRA enforcement action against defendants requiring defendants to clean up lead pellet wastes at a trap and skeet shooting range owned by the defendants only a few miles from the Lordship Point Gun Club.

On November 22, 1989, the Environmental Protection Agency (EPA) issued an administrative order RCRA Docket No. 1-90-1005 (the "Order") under the Resource Conservation and Recovery Act (RCRA) against the Remington Arms Company's ammunition manufacturing and testing facility in Bridgeport, Connecticut (the Bridgeport Site) requiring Remington to design a plan to clean up its Bridgeport site.

This Order clearly shows that EPA considers lead shot to be a solid and hazardous waste under RCRA. Determination C on page 36 of the Order states that, "[t]here have been releases of hazardous waste (as that term is defined at 42 U.S.C. § 6903(5)) into the environment from the Facility." On page 32, the first sentence of Section V.M of the Findings of Facts reads, "[t]he substances listed above [i.e., in Section L, pages 9 to 31] are hazardous wastes pursuant to section 1004(5) of RCRA, 42 U.S.C. § 6903(5)." The listed substances include lead from contaminated soils at the sites of various test firing ranges.

This Order also shows that shooting ranges have no special exemption under RCRA. The first paragraph of Section V.L on page 9 explains that the twenty-two Areas of Environmental Concern (AEC's) which must be cleaned up under the Order include "firing range target areas." In fact seven of the twenty-two areas of concern include shooting ranges contaminated by discarded lead shot and other hazardous wastes. For example, Remington must plan to clean up a "test firing range" and a "former `trap-shooting' area" in AEC-3 where "lead was released into soils" (see page 14) and a "range target location" in AEC-4 in which lead and other hazardous wastes were found in soil samples (see page 14). In AEC-11, Remington must plan to clean up "range target" (see page 24). In AEC-12, the "[t]arget for what was reported to be a 1000-yard range . . . [where] ammunition was fired into the hillside" must be cleaned. See page 25. AEC-16 includes an area used for "skeet shooting" (see page 27) which must be cleaned. The lead-contaminated soil next to a "range target area" must be cleaned up in AEC-17. See pages 27 and 28.

This Order is significant in that it directly contradicts defendants' claim that EPA has a national policy to exempt shooting ranges from prosecution under RCRA. Rather than exempting shooting ranges from RCRA enforcement, the EPA is, at this time, aggressively enforcing RCRA against a number of shooting ranges owned by defendants in Bridgeport, Connecticut, only a few miles from the Lordship Point Facility.

Defendants' principle support for their argument that their discarded lead shot is not solid waste within the meaning of RCRA is a letter from an EPA employee, Sylvias Lowrance, regarding a University of Indiana shooting range. In the letter, Ms. Lowrance renders her "opinion" that "ball and sport ammunition at shooting ranges does not . . . constitute hazardous waste disposal" because the discharge is "incident to a normal product use."

The opinion expressed in the Lowrance letter is inconsistent with the law and has since been discarded by EPA as explained above.

Neither RCRA nor its regulations exempt materials from being solid waste because they were discarded as part of their "normal or expected use." The determination of whether a specific substance is a solid waste is made by reference to the definitions in the statute and regulations, and as shown above, those definitions fit spend lead shot and discarded targets at the Remington site like a glove.

In any event, it cannot be seriously contended that the level of accumulations at this site (with sediment contaminations as high as 64% [ERCO Study, July 1986, p. i, Exhibit 10 to P.'s Memorandum of March 11, 1988, p.8, n.5]) are normal or intended since they made this site among the most dangerously and grossly contaminated in North America. (P.'s Memorandum of March 11, 1988, p.8 n.5)

Lastly, as a matter of policy, as Judge Burns pointed out, "if all products used for `their original intended purpose' were exempt from regulations, RCRA would be without teeth since virtually all waste would fit within this loophole." 777 F. Supp. at 21.

Lastly, the opinion of Sylvia Lowrance in the letter is not entitled to deference by this Court. The letter reflects only the analysis of an individual EPA employee in 1988 about the issue before the Court.

In Ford Motor Co. v. United States Environmental Protection Agency, 457 F.2d 661 (6th Cir. 1977), the Sixth Circuit Court of Appeals held that it was unlawful for the EPA to consider the "opinion" of the EPA's Deputy Assistant Administrator for Water Enforcement in deciding whether to deny a request for NPDES permit under the Clean Water Act. The "opinion" appeared in a written memorandum circulated within the EPA and mailed to the water permit chief at the Michigan Water Resources Commission. As in the case at bar the letter was a response by EPA headquarters to a request from a field office and purported to state EPA's "national policy" as to whether certain practices should be regulated under a federal environmental (NPDES) permit. The court held:

Id. at 671-72.

The letter in Ford Motor and the Lowrance letter are identical in all respects. Both are letters from EPA officials regarding how states are to interpret and implement permit programs managed by those EPA officials. Both interpret the statutes underlying the permit programs and purport to establish or reflect policy. Neither is a regulation or guidance document, a published policy or opinion of general counsel. Both are devoid of any notice and comment or other indicia of agency action. The Lowrance letter is entitled to the same status as the Ford Motor letter. In any event, EPA does not act consistently with the Lowrance letter, as explained below. See also, Associated Indus. of Alabama v. Train, 9 ERC 1561-69 (N.D. Ala. Dec. 6, 1976)(EPA's attempt to assert a "national policy" governing water classification under the Clean Water Act was invalid since the source of the policy was an internal agency memorandum by the Assistant Administrator for Air and Water Programs that was not noticed or published in the Federal Register.)

B. The discarded solid wastes at the Remington Gun Club are also hazardous waste.

The second step in determining the applicability of RCRA is determining whether a solid waste is hazardous. RCRA generally defines "hazardous waste" under 42 U.S.C. § 6903(5) (1990), as solid waste:

The EPA has further defined "hazardous waste," as any solid waste which exhibits the "EP toxic" characteristic under 40 C.F.R. § 261.24.

Pursuant to 40 C.F.R. sec 261.24, a substance meets the EP toxic characteristic if it yields concentrations greater than .05 ug/kg of lead. Defendant's own study indicates that several samples of shot pellets taken in the vicinity of Lordship Point were EP toxic for lead. Battelle Appendices, Dec. 30, 1987, App. 283-84. The lead is so hazardous, in fact, that even the soil upon which it lies is EP toxic for lead. Id.; see also Cardenas Supplemental Affidavit, Rec. No. 8, Ex. F, p.7. Because defendants' spent lead shot is solid waste as a matter of law and because lead shot at the Facility is EP toxic, defendants clearly come within the ambit of the RCRA regulatory scheme to control solid and hazardous wastes.

Both defendants and Amici argue that the District Court's decision may impose burdensome RCRA compliance on small firing ranges or even individual shooters. Amicus Briefs for National Shooting Sports Foundation at 7, and National Rifle Association at 3. As the district court pointed out, the statutory definition of "hazardous waste" provides a high threshold below which individual shooters and small shooting clubs would not be subject to regulation. 777 F. Supp. at 188-89, App. 79-80; see also B.F. Goodrich Co. v. Murtha, No. 91-7450, 1991 U.S. App. LEXIS 4406, at *23 (2d. Cir. March 12, 1992)(RCRA regulations turn in part upon threshold quantity or concentration requirements). Moreover, single shooters and smaller gun clubs would undoubtedly fall under RCRA's small quantity generator and household waste exemptions.

Therefore, under the statutory and regulatory framework, those gun clubs which do not pose environmental hazards would not be regulated. In the instant case, however, the Fishermen's Association is not complaining about a single shooter firing a shot over the ocean or small shooting clubs firing over land, but about a Facility that has accumulated thousands of tons of toxic material in a critical habitat.

Furthermore, if threshold shooting operations seek to avoid regulation as a hazardous waste facility, they have the option of using non-toxic steel shot which is widely available and proven for the sport. Remington Internal Memo, Rec. No. 4, Ex. 19.

Amici also advances the absurd argument that the lead shot exemption under the Toxic Substance and Control Act (TSCA), 15 U.S.C. § 2602(2)(B)(v) (1988), indicates that Congress intended to exempt lead shot under RCRA, to "integrate" all environmental statutes. Amicus Brief for National Rifle Association, at 2. Yet, the converse interpretation is equally valid; the TSCA exemption demonstrates Congressional recognition that lead shot was a hazardous substance otherwise subject to regulation.

According to Amici's logic, many of the substances routinely regulated by the EPA under one environmental statute would now be removed from regulation by virtue of exemption in another statute. For example, oil spills like the Valdez incident now regulated under the Clean Water Act would be altogether unregulated because they are exempt under RCRA. Compare 40 C.F.R. § 261.4(b)(5)(exempting drilling fluids and produced waters from production of crude oil) with 33 U.S.C. § 1321 (regulating oil spills). A bureaucratic nightmare would come of integrating all 40 federal environmental statutes according to Amici's theory.

Finally, Amici argues that retroactive application of RCRA's penalty provisions to defendants' activities offends equitable notions of jurisprudence. Amicus Brief for National Shooting Sports Foundation, Inc., at 7. This argument fails on two points. First, plaintiff does not seek penalties for activities which took place prior to the 1976 passage of RCRA. Secondly, the defendants continue to violate RCRA by not remediating the environmental harm present at the Remington site. Thus, the Amici's claim that the Fishermen's Association seeks to establish new regulations on past conduct is unsubstantiated. Fallowfield Development v. Strunk at 32.

RCRA § 3005(a), prohibits operation of a facility for the treatment, storage or disposal of hazardous wastes (a "TSD facility") without a permit. The prohibition became effective in November of 1980 when EPA promulgated regulations requiring owners and operators of TSD facilities to obtain a permit. 40 C.F.R. § 270. EPA's regulations define a facility as "all contiguous land, and structures, other appurtenances and improvements on the land, used for treating, storing, or disposing of hazardous waste." 40 C.F.R. § 260.10. In particular, a TSC facility is " a facility or part of a facility at which hazardous wastes is intentionally placed in or on any land or water, and at which waste will remain after closure." Id. In Fishel v. Westinghouse Electric Co. (Fishel I), 617 F. Supp. 1531 (M.D.Pa. 1985), the court found that the defendants were operating a TSD facility, within the meaning of 40 C.F.R. § 260.10, by keeping on the plant site drums of hazardous waste which eventually leaked. 617 F. Supp. at 1537. The court found that this leaking constituted an "intentional disposal" of wastes on the site and so the defendants' plant was subject to regulation as a disposal facility. Id. From November 19, 1980 until December 31, 1986, hazardous wastes listed under RCRA were disposed of and stored at the Remington site, in violation of RCRA § 3005. Like the disposal facility in Fishel I, the lead shot and target debris lie abandoned at the site subject to further dissolution into the environment through wave and tidal action. Moreover, the area in the subtidal and intertidal zones around Lordship Point constitutes the contiguous land on which those hazardous wastes are actually disposed of.

Indeed, all of Lordship Point, including the intertidal and subtidal zones, constitutes an illegal TSD facility because defendants have never applied for nor have ever been granted a permit to dispose of or store tons of solid and hazardous wastes at the Facility. Defendants' First Response To First Set of Interrogatories, Nov. 30, 1987, Rec. No. 32, p. 6 Response No. 8. Furthermore, defendants failed to develop a closure plan for the Facility by May 19, 1981, as required by 40 C.F.R. § 265.112.

RCRA section 7002(a)(1)(A) authorizes citizens to sue anyone alleged to be in violation of RCRA regulation or prohibition. In addition, § 7002(a) authorizes citizens to enforce any prohibition or regulation promulgated under RCRA. Environmental Defense Fund v. Lamphier, 714 F. 2d 331 (4th Cir. 1983); Fishel v. Westinghouse Electric Co. (Fishel I) 617 F. Supp. 1531 (M.D. Pa 1985); Fishel v. Westinghouse Electric Co. (Fishel II), 640 F. Supp. 442 (M.D. Pa. 1986)(citizen suits in which operators of TSD facilities without permits were found liable under RCRA section 3005). Because defendants are operating a TSD facility without a permit, plaintiff is entitled to summary judgment declaring such operation a violation of RCRA section 3005. Therefore, plaintiff seeks an injunction ordering defendants, pursuant to RCRA section 7002(a)(1)(A), to cease all unpermitted discharges and to stop storing hazardous waste at the Gun Club. In addition, defendants should be required to develop a closure plan for the Facility which remediates the site to meet RCRA standards.

Defendants also argue that the District Court erred in failing to find that targets are not solid and hazardous waste under RCRA. The District Court correctly held that this is an issue of fact because targets are a solid waste and may be a hazardous waste if they exceed the Toxic Characteristic Leachate Procedure test under RCRA. J J J J J CITE J J J J J J Since these tests have not been performed on the targets, this is still an outstanding issue of fact.

For these reasons, the District Court holding that defendants' activities are governed by RCRA should be affirmed.