IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CONNECTICUT COASTAL FISHERMEN'S ASSOCIATION
v.
REMINGTON ARMS CO.
March 29, 1993, Decided
OPINION (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. §§ 6901-6992 (1988), as amended by the Resource Conservation and Recovery Act
of 1976 ("RCRA") and the Hazardous and Solid Waste Amendments of 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 (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.
FACTS
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 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. 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.
LEGAL 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 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.
Meanwhile, the Coastal Fishermen's Association filed its original complaint on April 24.
The 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.
On September 11, 1991, the United States District Court for the District of Connecticut
ruled that it lacked jurisdiction over plaintiff's Clean Water Act causes of action
because the DEP was "diligently prosecuting an action under a [comparable] State
law," as provided in § 309(g)(6)(A)(ii) of the Act, precluding citizen suits.
Turning to the RCRA claims, the district court held that the lead shot and clay targets
were "discarded material" under 42 U.S.C. § 6903(27), were "solid
waste" under that statute, and therefore were subject to regulation under RCRA. It
further stated that the lead shot was a "hazardous waste," but believed there
were genuine issues of material fact as to whether the clay targets were "hazardous
waste" under RCRA.
[On this appeal,] we asked the EPA to file an amicus brief "addressing whether lead
shot deposited on land and in the water in the normal course of skeet and trap shooting is
'discarded material' within the meaning of 42 U.S.C. § 6903(22) so as to constitute
'solid waste' under [RCRA]."
DISCUSSION
I. CLEAN WATER ACT
[The Court dismissed the suit with respect to the Clean Water Act, as citizens suits are
only authorized under the CWA if there is a "state of either continuous or
intermittent violation" of the Act, and citizen plaintiffs may not pursue claims
under it for "wholly past" violations, Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., 484 U.S. 49, 57 (1987). In this case, Remington made a
"final irrevocable decision" never to reopen the Gun Club to trap and skeet
shooting at any time in the future, offering as support the fact that the trap and skeet
houses -- from which targets used to be thrown -- were dismantled and removed from the Gun
Club premises in November of 1988. Thus, there could be no continuing violation.]
II. RESOURCE CONSERVATION AND RECOVERY ACT
A. Overview
Turning now to Remington's appeal from the district court's RCRA ruling, plaintiff asserts
that Remington has been operating an unpermitted facility for the treatment, storage or
disposal of hazardous wastes in violation of 42 U.S.C. § 6925 (a citizens suit claim
under § 6972(a)(1)(A)) and has created an "imminent and substantial
endangerment" to human health and the environment under § 6972(a)(1)(B). The
district court did not distinguish between these causes of action in granting plaintiff
summary judgment. Remington, as noted, never obtained a RCRA permit for the operation of
its Gun Club facility, but contends that because lead shot and clay target debris are not
"solid wastes" -- and hence cannot be "hazardous wastes" regulated by
RCRA -- it is not subject to a permit requirement. In essence, Remington contends that
RCRA does not apply to the Gun Club because any disposal of waste that occurred there was
merely incidental to the normal use of a product.
RCRA establishes a "cradle-to-grave" regulatory structure for the treatment,
storage and disposal of solid and hazardous wastes. Solid wastes are regulated under
Subchapter IV §§ 6941-49a; hazardous wastes are subject to the more stringent standards
of Subchapter III §§ 6921-39b. Under RCRA "hazardous wastes" are a subset of
"solid wastes." See 42 U.S.C. § 6903(5). Accordingly, for a waste to be
classified as hazardous, it must first qualify as a solid waste under RCRA. We direct our
attention initially therefore to whether the lead shot and clay targets are solid waste.
B. Statutory Analysis
i. The Chevron Rule
Our analysis of the definition of solid waste entails statutory interpretation as outlined
in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 81 L.
Ed. 2d 694, 104 S. Ct. 2778 (1984). First, the reviewing court must address "whether
Congress has directly spoken to the precise question at issue" by focusing on the
language and structure of the statute itself, and then -- if necessary -- examine
congressional purpose expressed in legislative history. American Mining Congress v. EPA,
824 F.2d 1177, 1182 (D.C. Cir. 1987) (AMC I). A clear legislative purpose ends our
inquiry, but if "the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency's answer is based on a permissible
construction of the statute." Chevron, 467 U.S. at 843. In such case, we may not
substitute our interpretation of the statute for that of an executive branch agency
charged with administering it, but must defer to the agency's reasonable interpretation of
an otherwise ambiguous statute.
ii. Application of the Chevron Rule
We consider first the statutory definition of solid waste. RCRA defines
solid waste as:
any garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded material . .
. resulting from industrial, commercial, mining and agricultural operations, and from
community activities . . .
42 U.S.C. § 6903(27) (emphasis added). Remington admits that its Gun Club is a
"commercial operation" or a "community activity;" it challenges the
district court's finding that the lead shot and clay target debris are "discarded
material." The statute itself does not further define "discarded material,"
and this creates an ambiguity with respect to the specific issue raised by Remington: At
what point after a lead shot is fired at a clay target do the materials become discarded?
Does the transformation from useful to discarded material take place the instant the shot
is fired or at some later time?
The legislative history does not satisfactorily resolve this ambiguity. It tells us that
RCRA was designed to "eliminate[] the last remaining loophole in environmental
law" by regulating the "disposal of discarded materials and hazardous
wastes." H. R. Rep. No. 1491, 94th Cong., 2d Sess. 4 (1976). Further, the reach
of RCRA was intended to be broad.
"It is not only the waste by-products of the nation's
manufacturing processes with which the committee is concerned: but also the products
themselves once they have served their intended purposes and are no longer wanted by the
consumer. For these reasons the term discarded materials is used to identify collectively
those substances often referred to as industrial, municipal or post-consumer waste;
refuse, trash, garbage and sludge."
Id. at 2. Yet, the legislative history does not tell us at what point products have served
their intended purposes. The statutory definition of "disposal" as
"the discharge, deposit, injection, dumping, spilling, leaking, or placing of any
solid waste or hazardous waste into or on any land or water," 42 U.S.C. § 6903(3),
while broad, sheds little light on this question. Remington's focus on RCRA as being
intended to address only solid waste "disposal" -- in the sense of the
affirmative acts of collecting, transporting, and treating manufacturing or industrial
by-products -- clearly is too narrow because it ignores legislative aim and fails to take
into account the often non-voluntary acts of depositing, spilling and leaking. The statute
and legislative history do not instruct as to how far the reach of RCRA extends. Thus, we
proceed to the second step of the Chevron analysis and consider the EPA's interpretation.
The RCRA regulations create a dichotomy in the definition of solid waste. The EPA
distinguishes between RCRA's regulatory and remedial purposes and offers a different
definition of solid waste depending upon the statutory context in which the term appears.
In its amicus brief, the EPA tells us that the regulatory definition of solid waste
-- found at 40 C.F.R. § 261.2(a) -- is narrower than its statutory counterpart. The
regulations define solid waste as "any discarded material" and further define
discarded material as that which is "abandoned." 40 C.F.R. § 261.2(a).
Materials that are abandoned have been "disposed of." 40 C.F.R. § 261.2(b).
According to RCRA regulations, this definition of solid waste "applies only to wastes
that also are hazardous for purposes of the regulations implementing Subtitle C of
RCRA." 40 C.F.R. § 261.1(b)(1). As previously noted, Subtitle C [Subchapter III]
contains more stringent handling standards for hazardous waste, and hazardous waste is a
subset of solid waste.
The regulations further state that the statutory definition of solid waste, found at 42
U.S.C. § 6903(27), applies to "imminent hazard" lawsuits brought by the United
States under § 7003, 42 U.S.C. § 6973. See 40 C.F.R. § 261.1(b)(2)(ii). This statement
recognizes the special nature of the imminent hazard lawsuit under RCRA. Currently, RCRA
authorizes two kinds of citizen suits. The first, under § 7002(a)(1)(A), 42 U.S.C. §
6972(a)(1)(A), enables private citizens to enforce the EPA's hazardous waste regulations
and -- according to 40 C.F.R. § 261.1(b)(1) -- invokes the narrow regulatory definition
of solid waste. The second type of citizen suit, under § 7002(a)(1)(B), 42 U.S.C.
§ 6972(a)(1)(B), authorizes citizens to sue to abate an "imminent and substantial
endangerment to health or the environment." While the regulations do not specifically
mention this second category of citizen suit, regulatory language referring to § 7003
must also apply to § 7002(a)(1)(B) because the two provisions are nearly identical.
Consequently, the broader statutory definition of solid waste applies to citizen suits
brought to abate imminent hazard to health or the environment.
We recognize the anomaly of using different definitions for the term "solid
waste" and that such view further complicates an already complex statute. Yet, we
believe on balance that the EPA regulations reasonably interpret the statutory language.
Hence, we defer to them. Dual definitions of solid waste are suggested by the structure
and language of RCRA. Congress in Subchapter III isolated hazardous wastes for more
stringent regulatory treatment. Recognizing the serious responsibility that such
regulations impose, Congress required that hazardous waste -- a subset of solid waste as
defined in the RCRA regulations -- be clearly identified. The statute directs the EPA to
develop specific "criteria" for the identification of hazardous wastes as well
as to publish a list of particular hazardous wastes. 42 U.S.C. § 6921 (a) & (b). By
way of contrast, Subchapter IV that empowers the EPA to publish "guidelines" for
the identification of problem solid waste pollution areas, does not require explanation
beyond RCRA's statutory definition of what constitutes solid waste. Id. § 6942(a). Hence,
the words of the statute contemplate that the EPA would refine and narrow the definition
of solid waste for the sole purpose of Subchapter III regulation and enforcement.
C. Regulatory Definition of Solid Waste
The EPA, as amicus, concludes that the lead shot and clay targets discharged by patrons of
Remington's Gun Club do not fall within the narrow regulatory definition of solid waste.
Again, this issue is one we need not resolve because plaintiff has failed to allege a
valid claim, brought under the § 7002(a)(1)(A) citizen suit provision, that Remington
violated § 6925 of RCRA.
Plaintiff first alleges that Remington is operating a hazardous waste disposal
facility without a permit, in violation of § 6925. This claim alleges a "wholly
past" RCRA violation and is dismissed under Gwaltney. The Supreme Court acknowledged
that the language in the citizen suit provisions of the Clean Water Act and §
7002(a)(1)(A) of RCRA is identical, yielding the same requirement that plaintiff allege an
ongoing or intermittent violation of the relevant statute. Gwaltney, 484 U.S. at 57 &
n.2. Because we find no valid allegation of a present violation with respect to Coastal
Fishermen's Clean Water Act suit, we must reach the same result with respect to its first
claim under § 7002(a)(1)(A) of RCRA.
Second, plaintiff alleges that Remington owns or is operating a hazardous waste storage
facility without a permit in violation of § 6925. Because plaintiff's alleged
"violation" would continue as long as the lead shot and clay targets are
"stored" in the waters of Long Island Sound, Gwaltney does not bar this claim.
But RCRA and its regulations do. RCRA defines "storage" as "the containment
of hazardous waste, either on a temporary basis or for a period of years, in such a manner
as not to constitute disposal of such hazardous waste." § 6903(33). Neither the
statute nor its accompanying regulations define "containment," but
"storage" is further defined in the regulations as "the holding of
hazardous waste for a temporary period, at the end of which the hazardous waste is
treated, disposed of, or stored elsewhere." 40 C.F.R. § 260.10 (1992). The lead shot
and clay targets now scattered in the waters of Long Island Sound at no time have been
contained or held.
Moreover, the very essence of Coastal Fishermen's complaint is that Remington left the
debris in the sound with no intention of taking additional action. Hence, the alleged
storage of the waste logically may not be an interim measure as the regulations require.
Coastal Fishermen therefore failed to state a valid claim that Remington owns or operates
a hazardous waste storage facility or that it violated § 7002(a)(1)(A). Because only such
a violation would trigger application of the regulatory definition of solid waste, it is
unnecessary to decide whether the lead shot and clay targets fall within RCRA's regulatory
scope.
D. Statutory Definition of Solid Waste
Coastal Fishermen's allegation that the lead shot and clay target debris in Long Island
Sound creates an "imminent and substantial endangerment" under § 7002(a)(1)(B)
of RCRA need not meet the present violation hurdle. See Gwaltney, 484 U.S. at 57 n.2.
An imminent hazard citizen suit will lie against any "past or present"
RCRA offender "who has contributed or who is contributing" to "past or
present" solid waste handling practices that "may present an imminent and
substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B).
Therefore, under an imminent hazard citizen suit, the endangerment must be ongoing, but
the conduct that created the endangerment need not be.
As already noted, RCRA regulations apply the broader statutory definition of solid waste
to imminent hazard suits. The statutory definition contains the concept of "discarded
material," 42 U.S.C. § 6903(27), but it does not contain the terms
"abandoned" or "disposed of" as required by the regulatory definition.
40 C.F.R. §§ 261.2(a)(2), (b)(1). Amicus interprets the statutory definition of solid
waste as encompassing the lead shot and clay targets at Lordship Point because they are
"discarded." Specifically, the EPA states that the materials are discarded
because they have been "left to accumulate long after they have served their intended
purpose." Without deciding how long materials must accumulate before they become
discarded -- that is, when the shot is fired or at some later time -- we agree that the
lead shot and clay targets in Long Island Sound have accumulated long enough to be
considered solid waste. Compare AMC I, 824 F.2d at 1185-86 (in-process secondary materials
destined for immediate reuse as part of ongoing production process are not subject to RCRA
because not discarded) with American Petroleum Inst. v. EPA, 906 F.2d 729, 741 (D.C. Cir.
1990) (distinguishing AMC I on grounds that once product is "indisputably
'discarded'," it has become part of waste disposal problem and may be regulated under
RCRA).
E. Hazardous Waste
Having resolved that the lead shot and clay targets are discarded solid waste, we next
analyze whether they are hazardous waste. RCRA defines "hazardous waste" as
"a solid waste, or combination of solid wastes, which because of
its quantity, concentration, or physical, chemical, or infectious characteristics may -- *
* *
(B) pose a substantial present or potential
hazard to human health or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed."
42 U.S.C. § 6903(5)(B).
Certain wastes have been listed by the EPA as hazardous pursuant to 40 C.F.R. § 261.30.
Alternatively, a waste is considered hazardous if it exhibits any of the characteristics
identified in 40 C.F.R. §§ 261.20 through 261.24: ignitability, corrosivity, reactivity,
or toxicity. The district court granted summary judgment in favor of plaintiff on the
issue of whether the lead shot qualified as a hazardous waste, but at the same time stated
there were genuine issues of material fact as to whether the clay targets were hazardous
waste. 777 F. Supp. at 194-95. Remington objects to both rulings.
i. Lead Shot
The district court concluded that the lead shot was hazardous waste as a matter of law
because it satisfied the requirements of 40 C.F.R. § 261.24 for toxicity. See 777 F.
Supp. at 194. That regulation provides that a solid waste is toxic, and therefore
hazardous if, using appropriate testing methods, an "extract from a representative
sample of the waste contains any of the contaminants listed . . . at the concentration
equal to or greater than" that specified. 40 C.F.R. § 261.24(a). For lead, the
concentration threshold is 5.0 mg/L. Id. table 1.
The Battelle study commissioned by defendant outlines the test method utilized as in
accordance with EPA procedures, and was of the view that "Forty-five percent of the
sediment samples analyzed exceeded the [applicable limits for lead]. On the basis of these
results, upland disposal of the sediments as they currently exist in the environment at
Lordship Point would require use of a RCRA-certified hazardous waste disposal site."
Remington does not challenge the accuracy or methodology of the Battelle study that
clearly demonstrates that both the sediment at Lordship Point and the lead shot itself are
toxic within the meaning of 40 C.F.R. § 261.24. The Battelle study further opines that
"the accumulation of lead in the tissues of mussels and ducks [is] sufficient to
indicate a lead contamination problem requiring remediation at Lordship Point." As a
matter of law, the lead shot is a solid waste which, due to its toxicity and the fact that
it poses a substantial threat to the environment, is a hazardous solid waste subject to
RCRA remediation and regulation.
Amicus, National Rifle Association (NRA), contends that RCRA must be
"integrated" with other environmental statutes and because the Toxic Substances
Control Act exempts from the definition of "toxic substance" shells and
cartridges for use in firearms, see 15 U.S.C. § 2602(2)(B)(v) (1988), the lead shot
should not be classified as a hazardous waste (presumably because it should not be
considered "toxic") under RCRA.
NRA misreads the Toxic Substances Control Act. The section relied on, 15 U.S.C. §
2602(2), does not purport to define "toxic" substances, but rather defines
"chemical" substances. And "integration" under RCRA is designed
"for purposes of administration and enforcement and [to] avoid duplication," 42
U.S.C. § 6905(b)(1), not, as NRA urges, for the perilous purpose of engaging in a
far-ranging search through the United States Code for exemptions from particular
provisions of one environmental statute in order to apply them to another.
In fact, were RCRA to be integrated with other environmental statutes, it would seem more
appropriate to look to the Migratory Bird Treaty Act, prohibiting the use of lead shot in
12 gauge or larger shotguns when duck hunting. . . .
F. Other Arguments Raised by Remington and Amici
The National Shooting Sports Foundation, in an amicus brief, contends that imposing
liability under RCRA is an impermissible imposition of liability for past lawful conduct.
This contention misperceives the nature of the presumption against retroactive application
of a statute to conduct lawful when done. Connecticut Coastal Fishermen only seeks
appropriate relief under RCRA for Remington's operation of the club subsequent to the
effective date of RCRA and its applicable regulations. Merely because from such time until
suit was filed no action was taken to enforce RCRA against defendant does not mean the
statute is being retroactively applied.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed, in part, and
reversed, in part.