Cordiano v. Metacon Gun Club

• Decision Date: 31 July 2009
• Docket Number: Docket No. 07-0795-cv.
• Citation: 575 F.3d 199
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

575 F.3d 199

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.

Docket No. 07-0795-cv.

United States Court of Appeals, Second Circuit.

Argued: August 4, 2008.

Decided: July 31, 2009.

Andrew J. McDonald, James T. Shearin, Diane Woodfield Whitney, Pullman and Comley, LLC, Hartford, CT, for Plaintiffs-Appellants.

M. Reed Hopper, Pacific Legal Foundation, Bellevue, WA, for Defendants-Appellees.

Amber Blaha, Katherine J. Barton, Bradford McLane, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Karyn Wendelow Ski, Office of the General Counsel, United States Environmental Protection Agency, Daniel Inkelas, Office of the Chief Counsel, United States Army Corps of Engineers, for Amici Curiae the United States.

James G. Murphy, for Amici Curiae National Wildlife Federation, Connecticut Fund for the Environment, Conservation Law Foundation, Environmental Advocates of New York, Farmington River Watershed Association, Natural Resources Defense Council, Rivers Alliance of Connecticut, Sierra Club, and Vermont Natural Resources Council, Inc., supporting Plaintiffs-Appellants.

Deirdre G. Duncan, Virginia S. Albrecht, Jeffrey C. Corey, for Amici Curiae the National Association of Home Builders, the American Farm Bureau Federation, and the Chamber of Commerce of the United States of America, supporting Defendants-Appellees.

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

DEBRA ANN LIVINGSTON, Circuit Judge:

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...