CONNECTICUT COASTAL FISHERMEN ASSOC. v. Remington Arms Co., Civ. No. B-87-250 (EBB).

Decision Date11 September 1991
Docket NumberCiv. No. B-87-250 (EBB).
Citation777 F. Supp. 173
CourtU.S. District Court — District of Connecticut
PartiesCONNECTICUT COASTAL FISHERMEN'S ASSOCIATION v. REMINGTON ARMS COMPANY, INC. and E.I. Dupont DeNemours and Company.

COPYRIGHT MATERIAL OMITTED

David M. Lesser, Clendenen & Lesser, P.C., New Haven, Conn., Robert F. Kennedy, Jr., Conn. Coastal Fishermen's Ass'n, Garrison, N.Y., Jayne S.A. Pritchard, John Jay Legal Services, Inc., White Plains, N.Y., for plaintiff.

Francis J. Brady, Mark R. Sussman, R. Bradford Fawley, Murtha, Cullina, Richter & Pinney, Hartford, Conn., for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

ELLEN B. BURNS, Chief Judge.

The parties have filed cross-motions for summary judgment on the amended complaint which alleges that the defendants violated the terms and provisions of the Clean Water Act ("CWA"), 33 U.S.C. § 1365, by their unpermitted and unlawful discharges of lead from point sources into the Long Island Sound, and that the defendants violated the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6972, 6945, and 6973, by their unpermitted storage and disposal of hazardous waste, illegal open dumping of solid hazardous waste, and creation of an imminent and substantial endangerment to the Long Island Sound and its biota. For the reasons set forth below, the court holds that it lacks jurisdiction over the alleged violations of the Clean Water Act and grants summary judgment for the defendants on those claims. The court holds that there are no genuine issues of material fact in dispute regarding whether the lead shot is solid hazardous waste and therefore grants plaintiff's motion for summary judgment on that claim arising under the Resource Conservation and Recovery Act. The court finds there are genuine factual issues as to the hazardous nature of the target debris and the cross motions for summary judgment as to that issue are accordingly denied.

FACTS

From the late 1920's to at least December 31, 1986, Remington Arms Co., Inc. ("Remington") and its predecessors maintained a trap and skeet shooting club on Lordship Point in Stratford, Connecticut. Defendants' Statement of Undisputed Material Facts, filed Nov. 30, 1989, ¶ 1. Whether the defendants have maintained a trap and skeet shooting club at Lordship Point at any time after December 31, 1986, is a genuine issue of fact. Defendants' Response dated July 14, 1989, ¶ 2. The defendants admit that no discharges of target or shot occurred after the time plaintiff filed its complaint in April of 1987. Defendants' Response dated July 14, 1989, ¶ 5.

As part of the sport of shooting, lead shot and clay targets fell onto land leased or owned by Remington and into the adjacent waters of Long Island Sound. Defendants' Statement dated Nov. 30, 1987, ¶ 2. Lead shot was fired at targets thrown from 12 concrete block trap and skeet ranges at the Remington Gun Club, and some lead shot and targets fell into the waters of Long Island Sound. Defendants' Responses dated July 14, 1989, ¶ 3. The shooting activities involved the use of thousands of tons of lead shot and artificial targets, producing spent lead shot, unbroken targets, and, for the more successful sportsmen, target fragments. Plaintiff's Annotated Statement dated July 15, 1988, ¶ 4; Defendants' Response dated July 14, 1989, ¶ 4. Approximately 4 million pounds of lead were deposited around Lordship Point as the result of trap and skeet shooting at the Remington Gun Club. Plaintiff's Annotated Statement, dated July 15, 1988, ¶ 7. Defendants apparently concede that approximately 11 million pounds of target have been deposited around Lordship Point, but they dispute whether that 11 million pounds presently remain distributed in the waters around Lordship Point. Defendants' Response dated July 14, 1989, ¶ 12.

Remington has never had a CWA permit to discharge pollutants at the Gun Club, nor an RCRA permit to dispose of hazardous wastes at the Gun Club. Plaintiff's Annotated Statement, dated July 15, 1988, ¶¶ 14-15.

On August 19, 1985, the Connecticut Department of Environmental Protection ("DEP"), pursuant to its water pollution abatement authority, 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 water fowl of Long Island Sound and to take remedial measures. Defendants' Statement dated Nov. 30, 1987, ¶¶ 3, 4. Under § 402(a) and (b) of the Clean Water Act, 33 U.S.C. § 1342(a) and (b), the Administrator of the EPA has authorized the DEP to issue National Pollutant Discharge Elimination System (NPDES) permits. The DEP Order was modified on October 24, 1986 to require that Remington cease the discharge of lead shot to the waters of the State of Connecticut on or before December 31, 1986. Defendants' Statement dated Nov. 30, 1987, ¶ 6. The parties dispute whether the DEP Order was issued under the DEP's delegated authority to issue NPDES permits under the CWA. Plaintiff's Annotated Statement, dated July 15, 1988, ¶ 16; Defendants' Response, dated July 14, 1989, ¶ 16. The DEP does not have authority to issue hazardous waste permits under RCRA. Id.

On or about April 18, 1988, the DEP provided the plaintiff ("CCFA") with an opportunity to comment on the Remediation Study of the Gun Club site prepared by Battelle Ocean Sciences. The material provided to CCFA included specific remediation proposed by Remington to comply with DEP Order No. WC4122. Defendants' Supplemental Statement, dated July 14, 1989, ¶ 3. CCFA responded to DEP regarding the remediation proposal on or about May 13, 1988, expressing concern that target debris, and especially polycyclic aromatic hydrocarbons ("PAH") associated with such targets, be considered before the DEP approved the remediation proposal. Defendants' Supplemental Statement, dated July 14, 1989, ¶ 4. The DEP pursued CCFA's concerns about the clay targets with Remington. Defendants' Supplemental Statement, dated July 14, 1989, ¶¶ 5-7. The parties dispute whether the Remington Gun Club is permanently closed. John Preisser, Remington's vice-president, has stated that Remington has made a final, irrevocable decision not to reopen the Gun Club. But plaintiff fears that Remington may change its mind. Plaintiff's Response, dated September 15, 1989, ¶ 2. Although Remington is a wholly-owned subsidiary of DuPont, the defendants contend that DuPont has never owned or operated the Gun Club. Defendants' Statement dated Nov. 30, 1987, ¶ 17.

DISCUSSION
Part One: CLEAN WATER ACT

Since amendment in 1987, the Clean Water Act precludes citizen suits where "a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection." 33 U.S.C. § 1319(g)(6)(A)(ii). Thus, in order to determine whether the court may exercise jurisdiction over this case under the Clean Water Act, the court must determine whether (1) the State law under which the Connecticut Department of Environmental Protection (DEP) is proceeding is "comparable to" 33 U.S.C. § 1319(g) and (2) the DEP is "diligently prosecuting" its action. For reasons discussed below, this court concludes that Connecticut environmental laws, which grant enforcement powers to the DEP and contain procedural safeguards, are comparable to the federal statute, and that the DEP's ongoing enforcement efforts constitute diligent prosecution according to the meaning of the Act. Therefore, this court does not have jurisdiction to hear the plaintiff's Clean Water Act claims.

I. THE STATE LAW UNDER WHICH THE CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION IS PROCEEDING IS "COMPARABLE TO" THE RELEVANT PROVISIONS OF THE CLEAN WATER ACT.

Plaintiff filed this suit on April 24, 1987, shortly after amendments to the Clean Water Act were passed by Congress in February, 1987. The amendments became effective immediately upon passage. For the most part, plaintiff relies upon the language and construction of the preamendment Act. Therefore, it is useful to review briefly the history and philosophy of the Clean Water Act's enforcement provisions before addressing the plaintiff's claims.

A. Enforcement of the Clean Water Act Prior to 1987
1. Governmental Enforcement Provisions

Section 301(a) of the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act), 33 U.S.C. § 1311(a), prohibits the discharge of pollutants except in compliance with other sections of the Act. Section 402, 33 U.S.C. § 1342, established the National Pollutant Discharge Elimination System (NPDES), which allows the Environmental Protection Agency to issue permits authorizing effluent discharges. Among other provisions, this section authorizes states to establish and administer their own permit programs and allows for the imposition of civil and criminal penalties to abate violations of the permit or permit program.1 Connecticut's NPDES program was established in 1973.

Frank P. Grad's Treatise on Environmental Law discusses changes in environmental regulatory philosophy as evidenced by passage of the Clean Water Act and subsequent amendments. The object of the 1972 Act, as expressed in the legislation's declaration of goals and policies, was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," ultimately eliminating all water pollution. 33 U.S.C. § 1251(a). The statute replaced a more decentralized regulatory scheme which did not call for rigorous remediation measures.2 The 1977 amendments showed both a relinquishment of the zero pollution goal and a shift of enforcement emphasis away from the federal government to state agencies. The Act contains "repeated expressions of the intent of Congress that the states bear responsibility for management and enforcement in the first instance, though leaving ultimate authority to the Administrator of the EPA." Grad, Treatise on Environmental Law, 3-103. For example, 33 U.S.C. § 1251(b) states: "It is the policy...

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