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

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