Another Reason For An ESP
An interesting development on the legal front clarifies the role of the Comprehensive Environmental Response. Compensation and Liability Act (CERCLA), also known as the Superfund) as it relates to ranges. CERCLA establishes who pays how much, if harm has occurred. In the past, ranges have faced challenges from government agencies that have misapplied CERCLA to classify a "harm." A recent decision in California (Otay Land Company v U.E. Limited. L.P.) has clarified CERCLA’s intended role.
CERCLA requires (among other things) that the site be a "facility" as defined by CERCLA and that there is a release or threatened release. CERCLA’s definition of a facility contains a "consumer products” exemption. Without it, putting chlorine in your swimming pool or tossing a lemon in your trash would fall under CERCLA’s definition of a hazardous waste facility. The findings in the case were that spent ammunition used for recreational activities falls under the consumer products exemption of the definition of a" facility" under CERCLA. Since a recreational shooting range is not a "facility" as defined by CERCLA, then CERCLA does not apply.
In the judge’s decision, the question of applicability of CERCLA to non-recreational shooting ranges, such as military and law enforcement training facilities was addressed. Although there was no military or law enforcement use at this facility, the judge still pointed out that the consumer products safe harbor written into CERCLA would not apply.
The safe harbor decision that recreational ranges are not "facilities" under CERCLA was important enough. But the decision went further. It identified that there was no release or threatened release under CERCLA definitions, because spent ammunition is not a waste and is not discarded. It is important to note, however, that the judge indicated that had shot been landing in water or wetland covered under the Clean Water Act, this decision might have been different.
The decision in this case also spoke to the application of the Resource Conservation and Recovery Act (RCRA) to shooting ranges. Here again. There is good news. The judge reaffirmed the federal Environmental Protection Agency’s interpretation that spent ammunition is not a statutorily defined waste. As we have pointed out, however, there are two potential ways spent ammunition can become statutorily defined as a waste (and, because it is lead, regulatory defined as a hazardous waste.) The plaintiff in the case attempted both arguments, first that the mere presence of lead poses an imminent and substantial endangerment, and second, that the spent ammunition was “discarded”. The Judge rejected both of these arguments; the first on the grounds that there was no evidence the lead in the spent ammunition posed an imminent and substantial endangerment. This means a plaintiff cannot rely on a simple argument that 'lead is bad' and would have to go to the time and expense of showing how site conditions resulted in an endangerment.
The judge’s rejection of the second argument, that the spent ammunition was abandoned, has similarly far-reaching implications for every range. The range in question had conducted periodic reclamation of the spent ammunition. This, the judge said, means the spent ammunition was not abandoned. This reinforces the idea that developing and implementing an Environmental Stewardship Plan (ESP) provides a significant defense against a RCRA citizen's action suit claiming the spent ammunition is a hazardous waste because it is discarded.
This is only a brief summary of the findings in the case. For a copy of the full decision, including the legal arguments supporting the decision, please visit the NASR Web site. www.rangeinfo.org.
What does this mean for you? First, it underscores another benefit of developing and implementing an ESP. An ESP may provide significant legal protections in addition to enhancing your image in your community and being the right thing to do.
Second. Allowing military and/or law enforcement training at your range can be part of an effective community relation’s plan. By providing this critical need, your range becomes important to the community, and as such, it is better protected from NIMBY attempts to shut it down.
That, however, carries with it the potential for CERCLA exposure. The exposure is relatively small, but potentially expensive. Consult with your attorney and make the decision that makes sense for your circumstances.
As we close out another year. Permit me to switch gears for a moment to add a personal note: Thank you for everything you contribute to the shooting sports. Not many appreciate the work it takes to run a safe and successful shooting range. ... And you're the ones who get it done.
Source: National Shooting Sports Foundation http://www.nssf.org/
Best Management Practices For Lead At Outdoor Ranges