Chapter I: Environmental and Regulatory Concerns at the Shooting ...

More documents

Recommendations

Info

BMP for Lead at Outdoor Shooting Rangeswater. Many of the legal and government actionsthat have been brought against ranges arebased on elevated levels of lead, and increasedmortality in waterfowl. For example, in one case,an upland area of a range became a temporarypond after a thunderstorm. Waterfowl used thepond to feed and shortly thereafter, there was awaterfowl die-off (increase in bird mortality),apparently from lead ingestion.1.2 Legal Requirements & CourtRulingsTo date, most litigation concerns are at shotgunranges where the shotfall zone impacts water orwetland areas. The potential environmental andhuman health risks are greater at these ranges.However, all ranges, including those not locatednear water bodies, may be subject to legal andgovernment action if proper range managementprograms are not implemented. Range owners/operators should expect greater scrutiny asranges become more visible to regulators,environmental groups and the general public.Citizen groups have been the driving forcebehind most legal actions taken against outdoorranges. These groups have sued range owners/operators under federal environmental laws. Twoof EPA’s most comprehensive environmentallaws, the Resource Conservation and RecoveryAct (RCRA) and the Clean Water Act (CWA),specifically provide citizens with the right to suein cases in which the environment and humanhealth are threatened. These citizen suits havebeen highly effective in changing the way rangesoperate, even when out-of-court settlementshave been reached. The decisions of the UnitedStates Court of Appeals for the Second Circuit inRemington Arms and New York Athletic Club seta legal precedent in the application of RCRAand/or the CWA to outdoor ranges. Leadmanagement programs at outdoor ranges mustcomply with both laws. Actions have also beentaken under the Comprehensive EnvironmentalResponse, Compensation and Liability Act(CERCLA) commonly know as Superfund.State and local statutes and regulations mayalso apply. To ensure environmental laws arebeing followed, range owners/operators mustunderstand the legal issues and requirements.1.2.1 Resource Conservation andRecovery Act (RCRA)RCRA provides the framework for the nation’ssolid and hazardous waste managementprogram. Under RCRA, EPA developed a“cradle-to-grave” system to ensure theprotection of human health and the environmentwhen generating, transporting, storing, treatingand disposing of hazardous waste. RCRApotentially applies to many phases of rangeoperation because lead bullets/shot, ifabandoned, may be a solid and/or a hazardouswaste and may present an actual or potentialimminent and substantial endangerment.Connecticut Coastal Fishermen’sAssociation v. Remington Arms Company, etal.In the late 1980s, the Connecticut CoastalFishermen’s Association filed a lawsuit againstRemington Arms Company as the owner of theLordship Gun Club. The Lordship Gun Club(a.k.a. Remington Gun Club) is a 30-acre site inStratford, Connecticut, located on the LongIsland Sound at the mouth of the HousatonicRiver. In the mid-1960s, the Lordship Gun Clubwas reconstructed to its final configuration of 12combined trap and skeet fields and oneadditional trap field. Over the years, theLordship Gun Club became known as one of thepremier shooting facilities on the East Coast.The Connecticut Coastal Fishermen’sAssociation filed a lawsuit, alleging that lead shotand clay targets are hazardous waste underRCRA. The Complaint alleged that because thelead shot and clay targets were hazardouswastes, the gun club was a hazardous wastestorage and disposal facility subject to RCRArequirements. The plaintiff also sought civilpenalties and attorney’s fees.Remington moved for a summary judgmentdismissing the complaint, and the ConnecticutCoastal Fisherman’s Association cross-movedfor a partial summary judgment on the issue ofliability. On September 11, 1991, the UnitedStates District Court for the District ofConnecticut ruled on the case.Chapter I - Page I-6
BMP for Lead at Outdoor Shooting RangesRegarding the plaintiff’s claims under RCRA, theDistrict Court ruled in favor of the ConnecticutCoastal Fishermen’s Association, holding thatthe lead shot and clay targets were “discardedmaterials” and were “solid waste;” therefore, thematerials were subject to regulation underRCRA. The court further stated that thedischarged lead shot was a “hazardous waste,”but declined to rule on whether the clay targetfragments were also hazardous waste.Remington petitioned the United States Court ofAppeals for the Second Circuit Court to reviewthe lower court’s ruling.On June 11, 1992, both parties presented oralarguments before the court. Subsequent to oralarguments, the appellate court requested thatEPA file an amicus brief “addressing whetherlead shot and clay target debris deposited onland and in the water in the normal course oftrap and skeet shooting is ‘discarded material’...so as to constitute ‘solid waste’ under RCRA.”On March 29, 1993, the United States Court ofAppeals for the Second Circuit reached itsdecision. With respect to RCRA, the court bothreversed and affirmed the lower court’s opinionin part.Briefly, the decision affects currently operatingand future gun clubs, and the following keypoints are of primary concern:1. With respect to RCRA, the court agreedwith EPA’s amicus brief, which had argued thatthe gun clubs are not subject to RCRA’sregulatory (as opposed to statutory)requirements. In other words, gun clubs are notviewed as facilities that manage hazardouswastes subject to RCRA regulations and, assuch, do not require RCRA permits.2. Another argument in the EPA’s amicusbrief with which the court agreed was the viewthat the RCRA statute allows citizen suits to bebrought if a gun club’s shooting activities posean “imminent and substantial endangerment tohealth or the environment.” Although gun clubsare not subject to RCRA regulations, EPA orany state, municipality, or citizen group can takelegal action under the statutory provisions ofRCRA against gun clubs for actual or potentialenvironmental damage occurring during, or evenafter, the operation of the club. Under RCRA,the plaintiff would be eligible to recover its legalfees as well.3. The court concluded that lead shot andclay targets meet the statutory definition of solidwaste because these materials were “discarded(i.e. abandoned)” and “left to accumulate longafter they have served their intended purpose.”Further, the court concluded that based upontoxicity testing and evidence of leadcontamination, the lead shot was a hazardouswaste subject to RCRA.The important point to consider here is that iflead shot and clay target debris are discarded(i.e. abandoned), these materials are considereda solid waste as defined in the statute and thefacility may be subject to imminent hazardgovernmental or citizen suits.If, on the other hand, the discharged lead shot isrecovered or reclaimed on a regular basis, nostatutory solid waste (or hazardous waste)would be present and imminent hazard suitswould be avoided.Thus, the Remington Arms case is an importantlegal precedent. Even though regulations havenot been issued regarding gun club operationand environmental protection, gun clubs are stillat risk of legal action.Gun clubs where there is shooting into water,wetlands, rivers, creeks, and other sensitiveenvironments have the highest degree oflitigation risk. Conversely, gun clubs that havethe lowest risk of environmental litigation orgovernment action are those clubs that do notshoot into water or wetlands and which have anactive program to recover lead.The following describes how RCRA may applyto outdoor shooting ranges.How is Lead Shot Regulated UnderRCRA?Lead shot is not considered a hazardous wasteChapter I - Page I-7
Page 2 and 3: BMP for Lead at Outdoor Shooting Ra
Page 14: This page intentionally left blank

Chapter I: Environmental and Regulatory Concerns at the Shooting ...

Create successful ePaper yourself

Delete template?

Save as template?