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Cordiano v. Metacon Gun Club

July 31, 2009

DEAN M. CORDIANO, SPECIAL MASTER, SIMSBURY-AVON PRESERVATION SOCIETY, LLC, AND GREGORY SILPE, PLAINTIFFS-APPELLANTS,
v.
METACON GUN CLUB, INC., ITS MEMBERS AND GUESTS, DEFENDANTS-APPELLEES, ROBERT PATRICELLI, RINALDO TEDESCHI, DIANE TEDESCHI, SHELDON CHERRY, PLAINTIFFS.



SYLLABUS BY THE COURT

Plaintiffs-Appellants brought suit against Defendants-Appellees Metacon Gun Club, Inc., and its members and guests (collectively referred to as "Metacon") for violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, and Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, resulting from the discharge and accumulation of lead shot on Metacon's property. Plaintiffs-Appellants now appeal from several decisions of the United States District Court for the District of Connecticut (Arterton, J.), dismissing their claims. We defer to the EPA's interpretation of the applicable RCRA permit regulations, and hold that they do not apply to the regular, intended use of lead shot on a shooting range. Therefore, we conclude that the district court properly dismissed Plaintiffs-Appellants' claim based on the alleged disposal of hazardous waste without a RCRA permit, in violation of 42 U.S.C. § 6925(a). We also hold that the Plaintiffs-Appellants have failed to adduce sufficient evidence to create a material issue of fact regarding whether lead contamination on the shooting range constitutes "an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). Thus, we affirm the district court's grant of summary judgment to Metacon on Plaintiffs-Appellants' RCRA "imminent and substantial endangerment" claim. Finally, we hold that the Plaintiffs-Appellants failed to set forth sufficient evidence to create a material issue of fact as to whether the gun club is discharging lead shot into "navigable waters" from a "point source." 33 U.S.C. § 1362(12). Accordingly, we affirm the district court's grant of summary judgment to Metacon on Plaintiffs-Appellants' CWA permit claim.

Affirmed.

The opinion of the court was delivered by: Debra Ann Livingston, Circuit Judge

Argued: August 4, 2008

Before: RAGGI, WESLEY, and LIVINGSTON, Circuit Judges.

Plaintiffs-Appellants appeal from the judgment of the United States District Court for the District of Connecticut (Arterton,J.), dismissing various claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. First, the district court dismissed Plaintiffs-Appellants' permitting violation claim under 42 U.S.C. § 6925(a), for failure to state a claim. Second, the district court granted Defendants-Appellees summary judgment on Plaintiffs-Appellants' RCRA "open dumping" and "imminent and substantial endangerment" claims under 42 U.S.C. § 6945 and 42 U.S.C. § 6972(a)(1)(B). Finally, the district court granted Defendants-Appellees summary judgment on the claim that Defendants-Appellees are discharging pollutants into navigable waters without a permit in violation of the CWA, 33 U.S.C. § 1311(a). We affirm the decisions of the district court. With respect to the Plaintiffs-Appellants' RCRA "imminent and substantial endangerment" claim and CWA permitting claim, however, we affirm on alternative grounds.

BACKGROUND

Plaintiffs-Appellants are Simsbury-Avon Preservation Society, LLC, a group of homeowners who live near Defendants-Appellees' shooting range, and Gregory Silpe, a member thereof (collectively referred to as "SAPS"). Defendants-Appellees Metacon Gun Club, Inc., and its members and guests (collectively referred to as "Metacon") operate a shooting range that, according to SAPS, engages in the discharge and accumulation of lead munitions on Metacon's site in violation of the RCRA and the CWA. The following factual background is drawn from the record assembled in connection with Metacon's motion to dismiss and its two summary judgment motions.

I. The Metacon Site

Metacon has operated a private outdoor shooting range at its present location on 106 Nod Road in Simsbury, Connecticut since the mid-1960s.Metacon's range is located on 137 acres of woods, meadows, wetlands and mountainside, and is situated on a flood plain of the Farmington River Valley. The site is bounded to the north by the Connecticut State Police pistol and rifle ranges, to the west by Nod Road and the Farmington River, to the south by a residence and a golf course, and to the east by a cliff that runs along the entire eastern property boundary.

SAPS provided evidence that, due to flooding at the site and overflow of the Farmington River, there is an occasional hydrologic connection between waters on the Metacon site and the Farmington River.SAPS also provided limited evidence of a continuous surface water connection between wetlands on the Metacon site and a body of water called Horseshoe Cove, a tributary that flows directly into the Farmington River. Metacon provided evidence to the contrary.

Metacon has a 100-yard shooting range at the back of which stands an engineered earthen berm for bullet containment.There is evidence indicating that wetlands on the Metacon site are located in close proximity to the berm and on unspecified portions of the shooting range. Metacon's Environmental Stewardship Plan states that "[a] vernal pond is located directly in back of the backstop berm, and wetlands border the range immediately to the North and extend East beyond the berm for approximately 100 yards." J.A. at 211. Further, the District Engineer for the Army Corps of Engineers provided Metacon with a permit to expand its berm in 1990. The permit described the project location as "wetlands adjacent to the Farmington River." Id. at 467.

II. Evidence of Lead Contamination at Metacon

SAPS provided evidence of lead accumulation on Metacon's site based on a SAPS member's non-specific observation of a "tremendous amount of spent ammunition on the ground," id. at 596, and Metacon's admission in a related state lawsuit that "[t]housands of pounds of lead are deposited at the Site," id. at 696. Meanwhile, Metacon provided evidence that, for at least the last ten years, it has conducted "regular clean-ups," where members rake the range to collect materials such as spent casings and munitions. Id. at 503.

Several rounds of expert testing have been performed on Metacon's site. In November 2003, the State of Connecticut Department of Environmental Protection ("CTDEP") indicated that groundwater and surface water samples from the Metacon site exceeded Connecticut's Remediation Standard Regulation ("RSR") protection criterion for lead in groundwater and surface water. However, given time constraints on the testing and the fact that standard sampling protocol was not followed, CTDEP indicated that the result could be "skewed[,]... potentially resulting in higher concentrations of metals parameters." Id. at 275. As a result, CTDEP requested that Metacon retain a consultant to resample the monitoring wells and surface water east of the berm using an appropriate sampling methodology, and report back to the Department.

Metacon hired Leggette, Brashears & Graham, Inc. ("LBG"), which provides professional groundwater and environmental engineering services, to conduct the requested testing. In an April 2004 report, LBG found that "the ground water beneath the shooting range has not been impacted by lead from the shooting range," and that, with respect to wetland surface water, "the dissolved lead findings demonstrate that lead is not leaching out of the soil or surface water to contaminate the surface water." Id. at 266. In sum, the sampling "demonstrated that the shoo[t]ing activities at the Metacon property [have] not resulted in lead contamination of the ground water or surface water at the Metacon site." Id. at 267. Based on this report, the CTDEP concluded that "[a]ll the results indicate[] that lead was not detected or was present at concentrations in groundwater and surface water below action levels." Id. at 262.

SAPS disputed these findings with a May 2005 report produced by its own expert, Advanced Environmental Interface, Inc. ("AEI"). Unlike the LBG study, which tested only groundwater and wetland surface water samples,AEI tested soil samples and wetland sediment samples, as well as wetland surface water samples from the range and area surrounding the berm.With respect to soil samples, all samples collected from the backstop berm area, and all but one sample collected from locations between the firing line and berm, contained total lead concentrations that exceeded the CTDEP Direct Exposure Criterion ("DEC") for residential sites, with several samples exceeding the CTDEP Significant Environmental Hazard ("SEH") notification threshold.Some of these samples were subject to a leaching procedure, with results indicating that "the lead is leachable and may over time pose a threat to ground water quality." Id. at 643. With respect to wetland sediment samples, the total lead concentration for all samples exceeded the CTDEP DEC for residential sites.As to the wetland surface water samples, the report found different results in filtered and unfiltered samples. As to the unfiltered samples, the total lead concentrations exceeded the CTDEP chronic aquatic life criterion, with some samples exceeding the acute aquatic life criterion. However, the dissolved lead in the filtered samples was non-detect, meaning that the total lead concentrations in the unfiltered samples were likely "the result of either turbidity caused by suspended lead-bearing particles or colloidal matter." Id. at 644. The AEI report does not specifically explain the relevance of the distinction between the results from the filtered and unfiltered wetland surface water samples.

The AEI report states that "[s]pent ammunition from typical firing range activities has contaminated various environmental media on the Metacon Gun Club site." Id. at 645. Although the report notes that "firing-range-related contaminants on the site... represent[] a potential exposure risk to both humans and wildlife," it concludes that "[a] risk assessment utilizing the data obtained during this investigation would be necessary to evaluate the degree of risk to humans and wildlife." Id. at 646.

It is undisputed that Metacon does not have a hazardous waste disposal permit under the RCRA, 42 U.S.C. § 6925, or a National Pollutant Discharge Elimination System ("NPDES") permit, which is required for the discharge of pollutants under the CWA, 33 U.S.C. § 1311(a).

III. Metacon's Environmental Stewardship Plan

On July 13, 2004, after this litigation commenced, Metacon adopted an Environmental Stewardship Plan. It provides for the annual raking of the range and screening of debris to recover bullets and fragments, as well as the use of "vacuuming machinery rather than hand-raking, and mechanical separation machinery in place of hand screening." J.A. at 214. The Plan also provides for the mining of the berm in the year 2024.

DISCUSSION

I. Standards of Review

Since SAPS's RCRA permit violation claim is before us on appeal from the grant of a motion to dismiss, with respect to that claim we "accept the facts alleged in the... complaint as true." Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 180 (2d Cir. 2008). Our review is de novo. Id. at 183.

We review the district court's grant of summary judgment on the remaining RCRA and CWA claims de novo, construing the evidence in the light most favorable to the nonmoving party. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). Summary judgment is warranted only upon a showing by the movant "that there is no genuine issue as to any material fact and that the moving party is entitled to... judgment as a matter of law." Scholastic, Inc. v. Harris, 259 F.3d 73, 81 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 273 (2d Cir. 2001). In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment. Celotex, 477 U.S. at 322-23.

II. RCRA

A. Statutory Background

RCRA is a "comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). "RCRA's primary purpose... is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, 'so as to minimize the present and future threat to human health and the environment.'" Id. (quoting 42 U.S.C. § 6902(b)). The statute contains a citizen suit provision, 42 U.S.C. § 6972, "which permits private citizens to enforce its provisions in some circumstances." Id. at 484.

SAPS pursues two claims under the RCRA citizen suit provision. First, 42 U.S.C. § 6972(a)(1)(A) permits a civil action against any person "who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter." In its permitting violation claim, SAPS alleges that Metacon is operating a facility for the disposal of hazardous waste without the requisite permit, in violation of 42 U.S.C. § 6925(a). Second, 42 U.S.C. § 6972 (a)(1)(B) permits a civil action against any person "who has contributed or who is contributing to the past or present... disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." SAPS claims that lead munitions are being disposed of on Metacon's site and that this "may present an imminent and substantial endangerment," triggering liability under 42 U.S.C. § 6972(a)(1)(B).*fn1

RCRA defines solid waste as "any garbage... and other discarded material... resulting from industrial, commercial, mining, and agricultural operations, and from community activities."

42 U.S.C. § 6903(27) (emphasis added). In order for waste to be classified as hazardous under RCRA, "it must first qualify as a solid waste" pursuant to the statute. Conn. Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1313 (2d Cir. 1993); see also 42 U.S.C. § 6903(5) ("The term 'hazardous waste' means a solid waste [that also has additional characteristics.]"). As a threshold matter, because SAPS's permitting violation claim is based on the disposal of hazardous waste and its "imminent and substantial endangerment" claim requires the disposal of solid or hazardous waste, both claims require a finding that the spent munitions and their remains accumulating on Metacon's site constitute a solid waste under the RCRA.

We have recognized that "RCRA regulations create a dichotomy in the definition of solid waste," Conn. Coastal, 989 F.2d at 1314, so that a different definition applies to permitting violation claims than to claims of "imminent and substantial endangerment." With regard to the latter, 40 C.F.R. § 261.1(b)(2)(ii) provides that the statutory definition of solid waste in 42 U.S.C. § 6903(27) (in relevant part, that solid waste is "any garbage... and other discarded material... resulting from... community activities") "applies to 'imminent hazard' lawsuits brought by the United States under... 42 U.S.C. § 6973." Conn. Coastal, 989 F.2d at 1314. Because the language of the "imminent and substantial endangerment" citizen suit provision is "nearly identical" to the provision governing suit by the United States, id. at 1315, we have held that the "statutory definition of solid waste applies to citizen suits brought to abate imminent hazard to health or the environment," Id.; cf. 42 U.S.C. § 6972(a)(1)(B) (citizen suit provision); id. § 6973(a) (government suit provision).

The definition of solid waste in the RCRA regulations governing permitting violations and other related matters "is narrower than its statutory counterpart." Conn. Coastal, 989 F.2d at 1314; see also Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998) ("Although the EPA has narrowed the definition of solid waste for purposes of Subtitle C, the statute itself still provides the relevant definition for purposes of Subtitle G, which authorizes the Administrator (§ 7003) -- or, indeed, 'any person' (§ 7002(a)(1)(B)) -- to bring suit in order to force such action as may be necessary to abate 'an imminent and substantial endangerment to health or the environment' caused by solid waste." (quoting 42 U.S.C. §§ 6972(a)(1)(B), 6973)); Owen Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146, 148 n.3 (4th Cir. 1994) ("[T]he statutory definition of 'solid waste'... is broader than the regulatory definition.") (citing Conn. Coastal, 989 F.2d at 1315). As this Court said in Connecticut Coastal, these "regulations define solid waste as 'any discarded material' and further define discarded material as that which is 'abandoned.' Materials that are abandoned have been 'disposed of.'" 989 F.2d at 1314 (citations omitted) (quoting 40 C.F.R. § 261.2). This narrower definition of solid waste "applies... to wastes that also are hazardous for purposes of the regulations implementing Subtitle C of RCRA." 40 C.F.R. § 261.1(b)(1). Subtitle C includes 42 U.S.C. § 6925(a), the hazardous waste permitting provision pursuant to which SAPS initiated its permitting claim.

Concluding that the "[d]ual definitions of solid waste are suggested by the structure and language of RCRA," and that the regulations promulgated by the Environmental Protection Agency ("EPA") "reasonably interpret the statutory language," we have accorded deference to the EPA's dichotomous regulatory definition of solid waste pursuant to Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984). Conn. Coastal, 989 F.2d at 1315. Accordingly, SAPS's 42 U.S.C. ยง 6925(a) claim that Metacon is disposing of hazardous waste without a permit is governed by the narrower regulatory definition of solid waste, while ...


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