989 F.2d 1305 (2nd Cir. 1993), 1580, Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., Inc.

Docket Nº:1580, 1581, Dockets 92-7191, 92-7193.
Citation:989 F.2d 1305
Party Name:CONNECTICUT COASTAL FISHERMEN'S ASSOCIATION, Plaintiff-Appellee-Cross-Appellant, v. REMINGTON ARMS CO., INC., E.I. Dupont de Nemours & Co., Defendants-Appellants-Cross-Appellees.
Case Date:March 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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989 F.2d 1305 (2nd Cir. 1993)

CONNECTICUT COASTAL FISHERMEN'S ASSOCIATION,

Plaintiff-Appellee-Cross-Appellant,

v.

REMINGTON ARMS CO., INC., E.I. Dupont de Nemours & Co.,

Defendants-Appellants-Cross-Appellees.

Nos. 1580, 1581, Dockets 92-7191, 92-7193.

United States Court of Appeals, Second Circuit

March 29, 1993

Argued June 11, 1992.

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Mark R. Sussman, Hartford, CT (R. Bradford Fawley, Everett E. Newton, Murtha, Cullina, Richter and Pinney, New York City, of counsel), for defendants-appellants-cross-appellees.

Robert F. Kennedy, Jr., Natural Resources Defense Council, White Plains, NY (Kevin Desharnais, Kevin Doering, Frank C. Pavia, Legal Interns, John Jay Legal Services, of counsel), for plaintiff-appellee-cross-appellant.

James H. Warner, Asst. Gen. Counsel, Nat. Rifle Ass'n, Washington, DC, submitted a brief for amici curiae National Rifle Ass'n of America.

Douglas E. Kliever, Washington, DC (Cleary, Gottlieb, Steen & Hamilton, of counsel), submitted a brief for amici curiae National Shooting Sports Foundation, Inc.

David A. Nicholas, Boston, MA (Charles C. Caldart, Nat. Environmental Law Center, of counsel), submitted a brief for amici curiae Massachusetts Public Interest Research Group, New Jersey Public Interest Research Group, Washington Public Interest Research Group, Illinois Public Interest Research Group, Ohio Public Interest Research Group, and Public Interest Research Group in Michigan.

Nancy K. Stoner, Atty., U.S. Dept. of Justice, Washington, DC (Steven E. Silverman, U.S.E.P.A., of counsel), submitted a brief for amicus curiae U.S.

Before CARDAMONE, WINTER and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

Critical on this appeal is the meaning of the terms "solid waste" and "hazardous waste," as these terms are defined in the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992k (1988), as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), Pub.L. No. 94-580, 90 Stat. 2795 (1976), and the Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221 (1984). Defining what Congress intended by these words is not child's play, even though RCRA has an "Alice in Wonderland" air about it. We say that because a careful perusal of RCRA and its regulations reveals that "solid waste" plainly means one thing in one part of RCRA and something entirely different in another part of the same statute.

"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean--neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master--that's all."

Lewis Carroll, Through the Looking-Glass ch. 6 at 106-09 (Schocken Books 1987) (1872). Congress, of course, is the master and in the discussion that follows, we undertake to discover what meaning Congress intended in its use of the words solid and hazardous waste.

Remington Arms Co., Inc. (Remington or appellant) has owned and operated a trap and skeet shooting club--originally organized in the 1920s--on Lordship Point in Stratford, Connecticut since 1945. Trap and skeet targets are made of clay, and the shotguns used to knock these targets down are loaded with lead shot. The Lordship Point Gun Club (the Gun Club) was open to the public and it annually served 40,000 patrons. After nearly 70 years of use, close to 2,400 tons of lead shot (5 million pounds) and 11 million pounds of clay target fragments were deposited on land around the club and in the adjacent waters of Long Island Sound. Directly to the north of Lordship Point lies a Connecticut state wildlife refuge at Nells Island Marsh, a critical habitat for one of the state's largest populations of Black Duck. The waters and shore near the Gun Club feed

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numerous species of waterfowl and shorebirds.

Plaintiff, Connecticut Coastal Fishermen's Association (Coastal Fishermen or plaintiff) brought suit against defendant Remington alleging that the lead shot and clay targets are hazardous wastes under RCRA and pollutants under the Clean Water Act (Act), 33 U.S.C. §§ 1251-1387 (1988 & Supp. II 1990). Remington has never obtained a permit under § 3005 of RCRA for the storage and disposal of hazardous wastes, 42 U.S.C. § 6925, or a National Pollutant Discharge Elimination System (pollution discharge) permit pursuant to § 402 of the Clean Water Act, 33 U.S.C. § 1342. Plaintiff insists that Remington must now clean up the lead shot and clay fragments it permitted to be scattered on the land and in the sea at Lordship Point. Because the debris constitutes an imminent and substantial endangerment to health and the environment under RCRA, we agree.

BACKGROUND

In response to citizens' concerns regarding the impact of the Gun Club operations on the surrounding environment, the Connecticut Department of Environmental Protection (DEP or the Department) began an investigation in May 1985 into possible contamination. Concluding that the Gun Club's activities "reasonably can be expected to cause pollution," the DEP issued an administrative order (Order WC4122) on August 19, 1985, requiring Remington to:

1) Investigate the extent and degree of lead contamination of sediments and aquatic life as a result of past and present activities of the Remington Gun Club....

2) Perform a study to evaluate the potential for lead poisoning of waterfowl as a result of past and present activities at the Remington Gun Club.

3) Take remedial measures as necessary to minimize or eliminate the potential for contamination of aquatic life and waterfowl.

Order WC4122 required that remedial action be completed in a year or by August 31, 1986, "except as may be revised by the recommendations of [a] detailed engineering study and agreed to by" the DEP. It did not order Remington to cease discharging lead shot or targets or to obtain a pollution discharge permit. The DEP did not then have authority to issue RCRA permits.

Meanwhile, pursuant to the DEP's August 1985 order, Remington commissioned a study by Energy Resources Company. The scope of the study was approved by the DEP on February 3, 1986. On April 10, 1986, plaintiff sent Remington a letter of intent to sue for Clean Water Act and RCRA violations, see 33 U.S.C. § 1365(b)(1)(A); 42 U.S.C. § 6972(b)(1)(A), complaining of the discharge of lead shot and clay targets. The completed Energy Resources study was submitted to the DEP on July 2, 1986--one month before the August deadline for complete remediation. Based on the results of this study, the Department modified Order WC4122 on October 24, 1986 (modified order). The modified order required Remington to cease all discharges of lead shot at the Gun Club by December 31, 1986 and to submit a plan detailing remediation options by April 30, 1987. It did not prohibit Remington from continuing to operate the Gun Club after December 31, 1986, if steel shot was used in place of lead shot.

In response to the modified order, Remington commissioned a study by Battelle Ocean Sciences (Battelle) to look into remediation alternatives. Again, the DEP approved the scope of the Battelle study, though the study did not address remediation of the clay target fragments. Remington submitted the results of the Battelle study to the DEP on January 1, 1988. In April 1988 the DEP invited the Coastal Fishermen to comment on the Battelle study. Plaintiff expressed on May 13 concern about the lack of any remediation option for the clay targets debris.

In September 1988 the DEP--focusing on this concern--directed Remington to investigate the effect of the clay targets on the environment. Remington asked Battelle to conduct a further study, which it

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submitted to the Department in February 1990. The DEP approved Battelle's latest report on June 8, 1990. As a result, but well over a year later, the DEP ordered Remington to supplement the proposed remediation plan to include removal of visible clay target fragments from the beach surface above the mean low water mark of Long Island Sound and to study the possible removal of targets from the water. Remington has now submitted the ordered supplemental report, and is awaiting its approval by the Department. It will have six months after the DEP approves the remediation plan to submit final engineering plans and a construction schedule. Because the proposed remediation plan involves dredging navigable waters of the United States, Remington will have to obtain permits from the U.S. Army Corps of Engineers. To date, none of the lead shot or the clay target fragments has been removed from Lordship Point or the surrounding waters of Long Island Sound.

PRIOR PROCEEDINGS

The Coastal Fishermen's Association filed its original complaint on April 24 and amended it on October 21, 1987. The amended complaint alleges that the operation of the Gun Club involved the discharge of pollutants from a point source without a pollution discharge permit in violation of the Clean Water Act, and that because the lead shot and clay targets are hazardous wastes, the Gun Club is a hazardous waste storage and disposal facility subject to RCRA requirements. Plaintiff sought a declaration that Remington had violated and was violating both the Act and the RCRA orders compelling it to remedy the accumulations of shot and target debris. Plaintiff sought civil penalties and attorney's fees, but it did not ask to have the Gun Club's future activities enjoined.

Remington moved for summary judgment dismissing the complaint and plaintiff cross-moved for partial summary judgment on the issue of liability. On...

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