Citations
- 440 F. Supp. 2d 1152
Full opinion text
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS ON FEDERAL CLAIMS AND DECLINING TO RETAIN JURISDICTION OVER STATE LAW CLAIMS
BENITEZ, District Judge.
I. INTRODUCTION
When a gun enthusiast takes target practice at a public trap and skeet range and lead shot falls back down to earth, does the firing range become a hazardous waste “facility” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), or does it come within the safe harbor provision created for consumer products in consumer use. In this case of first impression, the Court holds that a shooting range site used by the public for sport or recreation, where spent ammunition or targets have come to be deposited as a byproduct of target practice, is not a hazardous waste “facility” subject to CERCLA. It is not a case about whether former ranges should be remediated; it is a question of who should bear the cost.
On October 13,1998, Plaintiff Otay Land Company was formed by two large investors for the purpose of bidding on a 4,793 acre piece of real estate at an estate sale. On October 15, 1998, Otay Land Company successfully outbid other bidders with a bid of $19.5 million. Prior to the bidding and sale, Otay Land Company was advised by its own consultant that a trap and skeet range had formerly operated on part of the tract. Not surprisingly, after the purchase in 1998, Otay Land Company found lead shot and clay targets on the ground. In December 2003, Otay Land Company transferred ownership of 69 acres which includes the shooting range site to Plaintiff Flat Rock Land Company, LLC. Otay Land company is the sole owner of Flat Rock Land Company.
In December 2003, Plaintiffs brought this action against former owners and operators of the firing range under § 107(a) of CERCLA, § 7002 of the Resource Conservation and Recovery Act (“RCRA”), and other state laws seeking declaratory and injunctive relief and money damages to pay for the cost of investigating, remed-iating or restoring the soil from the former trap and skeet shooting range. Neither the United States Environmental Protection Agency nor any state or local governmental agency has ordered Plaintiffs to clean up the site. And there is no evidence that the site could not continue to be used as a shooting range in the future. Defendants now move for summary judgment. For the reasons that follow, this Court grants summary judgment in favor of Defendants on the CERCLA claim and the RCRA claim, and declines to exercise ancillary jurisdiction over the pendant state law claims.
II. FACTS
Plaintiffs are the current owners of property located at 5350 Heritage Road, Chula Vista, California (“the shooting range”). The property is a former trap and skeet shooting range which opened to the public in 1965, and operated at various times between 1965 and 1998. Defendants are allegedly former owners of the property or operators of the shooting range.
III. LEGAL STANDARD
A. SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) permits a court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325-327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is warranted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The movant has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant is not required to produce evidence showing the absence of a genuine issue of material fact, nor is he or she required to offer evidence totally negating the non-movant’s claims. Lujan v. Nat'l Wildlife Fed’n., 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.1989). If the movant meets his or her burden, the burden then shifts to the non-movant to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-movant does not meet this burden by showing “some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A mere scintilla of evidence in support of the non-moving party’s position is not sufficient, “there must be evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Accordingly, the non-moving party cannot oppose a properly supported summary judgment motion by “rest[ing] on mere allegations or denials in his [or her] pleadings.” Id. at 256, 106 S.Ct. 2505. The non-movant must go beyond the pleadings to designate specific facts showing that there are genuine factual issues that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. If the non-movant fails to make a sufficient showing of an element of his or her case, the movant is entitled to a judgment as a matter of law. Celotex, 477 U.S. at 325, 106 S.Ct. 2548.
However, in considering the motion, the non-movant’s evidence is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are juiy functions, and are not appropriate for resolution by the court on a motion for summary judgment. Id.
B. CERCLA
Plaintiffs seek to hold Defendants liable for clean-up costs under § 107 of CERCLA (42 U.S.C. § 9607), which provides an implied right to contribution. See Order Granting Plaintiffs’ Motion to Amend the Second Amended Complaint (filed Sept. 22, 2005) (dkt. no. 112) (relying on Pinal Creek Group v. Newmont Min. Corp., 118 F.3d 1298, 1300 (9th Cir.1997)); but see Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 584, 160 L.Ed.2d 548 (2004) (declining to address the issue of whether § 107 provides an implied right of contribution).
“CERCLA was a response by Congress to the threat to public health and the environment posed by the widespread use and disposal of hazardous substances.... Its purpose was to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances bore the cost of remedying the conditions they created.” Pinal Creek, 118 F.3d at 1300 (internal citation omitted). “Section 107 of CERCLA permits the government or a private party who has incurred response costs to bring suit against a PRP to recover those costs.” Fireman’s Fund Ins. Co. v. City of Lodi, California, 302 F.3d 928, 945 (9th Cir.2002), cert. denied, 538 U.S. 961, 123 S.Ct. 1754, 155 L.Ed.2d 512 (2003); see also 42 U.S.C. § 9607.
To prove a prima facie case, or to escape Defendants’ summary judgment on the CERCLA claim, the Plaintiffs must establish at least a genuine issue of material fact concerning the following four elements: (a) the site is a “facility” under § 9601(9); (b) there has been an actual or “threatened release” of a hazardous substance from the “facility”; (c) the release has caused Plaintiffs to incur response costs that are both “necessary” and “consistent with the national contingency plan”; and (d) the Defendants are within one of the four classes of “responsible parties” (or PRPs) described in § 9607(a). See Pakootas v. Teck Cominco Metals, 452 F.3d 1066 (9th Cir.2006); Carson Harbor Village, LTD v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.2006); San Diego Unified Port District v. TDY Industries, Inc., Case No. O3cvll46-B(POR), 2006 WL 762838, n. 6 (S.D.Cal. March 15, 2006) (Brewster, J.)(same). Section 9607(a) establishes four categories of PRPs. PRPs are: (1) current owners or operators of a facility; (2) persons who owned or operated a facility in the past at a time of hazardous substance disposal; (3) persons who arranged for disposal or treatment of hazardous substances at a facility (i.e., “arrangers”); and (4) persons who accepted hazardous substances for transport to disposal or treatment facilities (ie., “transporters”).
C. RCRA
Plaintiffs also seek injunctive relief under RCRA, 42 U.S.C. § 6972(a)(1)(B) (the third claim for relief) alleging that Defendants caused lead shot and target debris to be discarded and thus to become hazardous solid waste that presents an imminent and substantial danger. “RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). In order for RCRA to apply, there must be “discarded” “hazardous waste.” See 42 U.S.C. § 6903(5).
IV. DISCUSSION
A. CERCLA Liability
The legal landscape of firing range liability under CERCLA is still wild and untamed. Decisions involving CERCLA’s safe harbor provision for consumer products in consumer use are scarce. Cases about trap and skeet ranges are hard to find.
Plaintiffs’ lawsuit tests the outer bounds of several terms and concepts in this unusual setting. For example, it must be determined whether lead from shotgun shells and chemicals in clay targets falling naturally to the ground as a result of trap and skeet shooting can turn a site into a hazardous waste “facility,” whether lead is thereby “released” into the environment, and whether the resulting accumulation of lead and targets and the mere passage of time constitutes a “disposal” of “hazardous waste.”
1. “FACILITY”
Whether any party can be held liable to contribute to remediation costs under Plaintiffs’ CERCLA claim depends in the first instance upon the shooting range being deemed a “facility” under CERCLA. See Carson Harbor Village, LTD v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.2006) (“To establish a prima facie case under [42 U.S.C.] § 9607(a), the plaintiff must show that (1) the property at issue is a ‘facility’ as defined in 42 U.S.C. § 9601(9).... ”); see also San Diego Unified Port District v. TDY Industries, Inc., Case No. 03cv1146-B(POR), 2006 WL 762838 n. 6 (S.D.Cal. March 15, 2006) (Brewster, J.)(same).
Under CERCLA, a “facility” is defined as: “(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.” Title 42 U.S.C. § 9601(9). Part (A) of the facility definition does not apply to the range as the area is not a building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft. Part (B), on the other hand, is much more encompassing: including within the term any area where a hazardous substance, in any quantity, has been deposited, stored, disposed of, placed, or otherwise come to be located.
a. Lead is a hazardous substance
There is no dispute that lead shot and clay target waste was deposited, or at the very least, came to be located on the subject property during the operation of the shooting range. Lead in any amount is a hazardous substance. A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1110 (9th Cir.1998). The amount of lead is not significant. Id. (“Drop an old nickel that actually contains nickel? A CERCLA violation. Throw out an old lemon? It’s full of citric acid, another hazardous substance.”). Moreover, the Ninth Circuit and other courts have given CERCLA provisions broad interpretation to accomplish the remedial goals of the Act (ie., the goal of addressing “the problem of inactive and abandoned hazardous waste disposal sites”). 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1363 (9th Cir.1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991) (citing U.S.Code Cong. & Admin. News 1980, at 6119, 6125). Thus, without the safe harbor provision for consumer products in consumer use, a shooting range would undoubtedly fall within part (B) of the broad “facility” definition. On the other hand, if the hazardous substance-containing shotgun lead and clay target debris which has come to be located on the site is a “consumer product in consumer use,” or if the entire range is a “consumer product in consumer use,” then a fair reading of the statute would mean that a shooting range would fall outside the definition of a CERCLA “facility.”
b. Lead shot as a consumer product
The site was raw undeveloped land prior to its use in 1965 as a shooting range. There is no evidence that any hazardous substances had been deposited or disposed of on the site prior to the shooting activities. In other words, the site could not have been a CERCLA “facility” until after the first clay target was released and the first shotgun was fired and lead shot and clay target fell to the ground. As mentioned earlier, there is no minimum amount of lead required for the lead to qualify as a hazardous substance. The lead shot from a single shotgun shell or the lead bullet from a single round of ammunition meets the definition of a hazardous substance for purposes of CERC-LA. The central question in this context is whether the ammunition and clay targets coming to be located on the shooting range were consumer products in consumer use. The undisputed evidence in this case indicates that the range was used during its history as a public shooting range for sport and recreation. Moreover, the ammunition and targets expended at the range were manufactured for consumers. In these circumstances, the Court finds that the shooting range is anchored in CERCLA’s safe harbor provision for consumer products.
In the view of this Court, shotgun shells are consumer products. Clay targets are consumer products. When a sportsperson came to the range for recreational target practice, they would use these two consumer products by shooting at a consumer product (the clay target) with a consumer product (a shotgun shell). When the resulting hazardous substances came to be located on the range in the process of the consumer products being used by a consumer, the range fell within the exception to CERCLA’s definition of a “facility.”
c. Military and government shooters might not be “consumers”
There are other contexts which could lead to a different outcome. For example, a military shooting range used to train government troops using military-issued ammunition would clearly not fall within the “consumer product in consumer use” exception. In the same way, a police range used by law enforcement for their official duties would fall outside the CERCLA exception. Likewise, the safe harbor provision would be inapplicable to a site used by an ammunition manufacturer for research and development or quality control. However, these are scenarios not presented in this case.
d.“Facility” is interpreted broadly, but not without limit
Plaintiffs make several arguments against the application of the consumer product exception for this case. First, Plaintiffs point out that courts have expansively interpreted the term “facility” to encompass any site where hazardous substances have come to be located, citing inter alia, 3550 Stevens Creek, 915 F.2d at 1360, n. 10. The Ninth Circuit in 3550 Stevens Creek makes the statement that, “the term ‘facility’ has been broadly construed by the courts, such that ‘in order to show that an area is a facility, the plaintiff need only show that a hazardous substance under CERCLA is placed there or has otherwise come to be located there.’ ” Id. (citations omitted). While this is an accurate statement about the broad language of the “facility” definition, the Ninth Circuit does not address the consumer product exception. The defendant in 3550 Stevens Creek, was not contesting the application of the CERCLA facility definition. Id. at 1360 (“[Defendant] does not contend that a structure built with asbestos insulation and fire retardants is not a ‘facility’ within the meaning of CERC-LA.”). Instead, 3550 Stevens Creek held that CERCLA did not create a private cause of action under § 107(a) for the voluntary removal of asbestos from a commercial building. Id. at 1365 (noting such would be an “improvident interpretation of a statute that Congress never intended to apply in this context.”). Thus, to read 3550 Stevens Creek as Plaintiffs do would be to read CERCLA’s application without limit and the consumer product exception completely out of the statute. The language of the statute does not permit such a limitless application. Id. at 1363 (“However, we must reject a construction that the statute on its face does not permit, and the legislative history does not support.”). While courts have read the definition of “facility” expansively, they do so in general terms without focusing on the consumer product exception. New courts have attempted to identify the contours of the consumer product safe harbor contained in the same definition. See, e.g., Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238, 254 (5th Cir.1998) (“It does not appear that this Court, nor any court in the United States Court of Appeals, has authored a definitive opinion on the meaning of the consumer product exception.”).
e. PRP exceptions are not relevant
Plaintiffs next argue that the four exceptions to CERLCA PRP liability set forth in § 9607(b) are narrowly interpreted. While this is true, the statutory exceptions to liability come into play only after the definition of “facility” is found to apply to a particular site. Here, the shooting range site does not qualify as a “facility” and the other exceptions to PRP liability do not come into play.
f. No direct precedent for public shooting ranges
Plaintiffs next argue that substantial judicial and EPA precedent establish that shooting ranges are CERCLA “facilities.” However, Plaintiffs overstate the quantity and quality of the precedent. Actually, there is very little judicial precedent— none on point — and EPA inaction tends to support this Court’s finding that a public shooting range is not a “facility.”
1. The Kamb case is about government users, not consumer users
Plaintiffs chiefly rely on the only reported federal court CERCLA decision involving a shooting range, Kamb v. U.S. Coast Guard, 869 F.Supp. 793 (N.D.Cal.1994), for the proposition that a former shooting range is a CERCLA “facility.” However, Kamb cannot support the heavy weight Plaintiffs place upon it. First, the decision of another district court is not controlling. Second, the decision is not persuasive. The decision is not persuasive because the Kamb court never addressed the consumer product exception. In fact, in its recitation of the CERCLA “facility” definition the Kamb decision completely omits the language of the consumer product exception. Id. at 797. The court set forth parts (A) and (B) of the definitions (“Under CERCLA, the term ‘facility’ is broadly defined as: ... (A) Any building, structure, installation, equipment, pipe or pipeline ..., well, pit pond, lagoon, impoundment ditch, landfill, stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; .... ”), but omits the safe harbor language from the statute: “but does not include any consumer product in consumer use or any vessel.” Id. (ellipses in original) (emphasis added). The consumer product exception was simply not considered in Kamb.
Moreover, there was good reason for not considering the consumer product exception in Kamb. Kamb was an action brought against government defendants — including the United States Coast Guard, the California Highway Patrol, the County of Mendocino, and the City of Fort Bragg, California. The shooting range site was used by employees of these governmental entities for target practice. As the court noted, “Defendants United States, the State of California, the County of Mendocino, and the City of Fort Bragg each have admitted that its personnel discharged firearms containing lead bullets at the Site, thereby contributing, to some extent, to the contamination.” Id. at 798. Although “consumer” is not defined in CERLCA, it is entirely appropriate to treat the employees of the government defendants in Kamb as something other than consumers. If the government defendants were not consumers, the consumer exception would simply have no application. Consequently, that court had no occasion to determine whether a shooting range for non-government recreational shooters would come within the “consumer product in consumer use” exception. To sum up, the only reported CERCLA decision involving a shooting range offers no guidance as to whether the consumer product exception applies to the shooting range at issue in the case at bar. Kamb misses the target.
2. Other cases do not address the consumer product exception
Plaintiffs also cite to three unpublished shooting range cases for the remainder of their “substantial precedent” argument. In Aggio v. Aggio, 2005 WL 2277037 (N.D.Cal. Sept.19, 2005), a court denied a motion to dismiss a CERCLA claim against a gun club. It did so without ever identifying or addressing the consumer product exception. In South Gate Rod & Gun Club v. City of South Gate, 2005 WL 2659540 (Cal.2005), a California state court simply observed that a companion federal case existed involving a shooting range and CERCLA cost recovery suit. The final citation is simply to a complaint against a shooting range filed in another district (i.e., The Ryland Group, Inc. v. The Payne Firm, Inc., Case No. 1:04cv381-WHR (S.D.Ohio)). Plaintiffs concede that none of these actions specifically address the “facility” issue but suggest that “it is telling that the exception does not appear to have precluded any of the lawsuits.” This Court cannot agree that a filed complaint, a state court observation that a federal case has been filed, and a denial of a motion to dismiss that omits any mention of the CERCLA “facility” definition and its consumer product exception, tells anything about whether a public shooting range used for sport or recreation falls within or without the definition of a CERCLA facility.
g. Deference to EPA’s interpretation
Plaintiffs next argues that the United States Environmental Protection Agency “considers contaminated former shooting ranges to be CERCLA facilities” and that the EPA’s conclusion is entitled to substantial deference. Again, Plaintiffs overstate their case. First, if Congress has already spoken to the precise question at issue, there is no reason to defer to an agency’s interpretation of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. On the other hand, if the statute is silent or ambiguous, or where Congress has explicitly left a gap for the agency to fill, the agency interpretation is given substantial deference. Id. at 843-44, 104 S.Ct. 2778.
In this case, the EPA is not a party and the EPA has not filed an amicus brief. Plaintiffs do not point to, and the Court has not identified, published regulations by the EPA defining what constitutes a “consumer product in consumer use.” More to the point, the EPA has not published regulations defining a public shooting range as a CERCLA “facility.” Had the EPA done so, and assuming for the sake of argument that the intent of Congress is unclear, the EPA’s rules and regulations would be due considerable deference. A & W Smelter, 146 F.3d at 1111.
h. EPA Region 2 Best Practices Manual
However, instead of agency rules or regulations, Plaintiffs argue that a publication produced by the RCRA Compliance Branch of EPA’s Region 2 office in New York, New York, entitled Best Management Practices for Lead at Outdoor Shooting Ranges, “is compelling evidence of the agency’s views.” This Court disagrees for a number of reasons. One problem with Plaintiffs’ reliance on the publication is the EPA’s own disclaimer in the manual: “This guidance does not constitute rule-making by the EPA and may not be relied on to create a substantive or procedural right or benefit enforceable, at law or in equity, by any person.” Id. at 3. Another problem with relying on the manual for evidence of the agency’s views is that it contains only the views of one of the ten regional offices of the EPA. Finally, the manual goes only so far as to say that a shooting range may be liable under CERCLA for cleanup costs. The manual does not distinguish between types of shooters (sportspersons, law enforcement officers, military, or manufacturers), or types of sites (sites where lead is present only from recreational shooting versus lead brought on to the site from elsewhere or sites where lead has been purposefully disposed). Some types of shooters and some types of sites qualify for the consumer product safe harbor provision while others would not. The EPA Region 2 Best Management Practices manual is admittedly advisory, does not constitute official rulemaking, and at best is entitled to slight deference. A & W Smelter, 146 F.3d at 1112 (“Ad hoc agency action.. .is entitled to some deference, but not all deference is created equal.... How much deference an agency is due depends in part on such factors as how much deliberation went into reaching it and whether the decision fits with a policy the agency has consistently followed.”).
i. Six administrative actions out of 9,000 possible shooting ranges
Plaintiffs also point to administrative settlements or consent decrees regarding six shooting ranges. The EPA Region 2 Best Management Practices manual estimates that there are in existence 9,000 non-military shooting ranges within the United States. EPA actions taken against six, out of 9,000 shooting ranges, hardly reflects an agency judgment that the typical shooting range qualifies as is a CERC-LA “facility.” In fact, the EPA’s limited enforcement activity, the EPA’s absence in this case, and Region 2’s publication of a manual suggesting best practices for operating a shooting range (as opposed to publishing a warning bulletin advising the closure of shooting ranges), more realistically reflects an agency judgment that most shooting ranges do not qualify as CERC-LA hazardous waste facilities.
j. EPA reporting requirements are broader than statutory liability
Plaintiffs also argue that the EPA rejected efforts to exempt shooting ranges from CERCLA in a Rule adopted in 1993 as evidence that the agency considers all shooting ranges to be CERCLA facilities. See, 58 Fed.Reg. 35314 (June 30, 1993). In that rule, the EPA made adjustments to the quantities of various hazardous substances which are required to be reported to the EPA under §§ 102 and 103 of CERCLA. The weakness of Plaintiffs argument in this respect is that CERCLA’s reporting requirements in §§ 102 and 103 are broader than the statute’s definition of “facility” in § 101. For example, § 103 imposes a reporting requirement on “any person in charge of a vessel,” while the definition of a “facility” in § 101(9) excludes a vessel: “[t]he term ‘facility’ ... does not include any consumer product in consumer use or any vessel.” In the context of reporting requirements, in its response to public comments, the EPA does note that, “Congress did not create an exemption from CERCLA reporting requirements for releases associated with shooting at target ranges.” Id. at 35320. And yet, the EPA Rule explains the only in certain instances is a release at a shooting range required to be reported at all. For example, the Rule states, “EPA has established by regulation that notification of a release of an RQ [reportable quantity] of solid particles of lead metal is not necessary if the diameter of the lead metal particles released is greater than 100 micrometers.” Id. (emphasis added). Consequently, the Rule cited by Plaintiffs is not indicative of the EPA’s view of whether or not all public shooting ranges fall within CERCLA’s definition of a “facility,” only that in some instances a range operator has a reporting obligation. The EPA simply has not offered a regulatory interpretation on this question of whether a public trap and skeet range comes within the CERCLA safe harbor of the “consumer product in consumer use” exception.
k.The Military Munitions Rule
The EPA has issued a final Rule on the closely-related question of how to treat military munitions under RCRA. In this Rule, the EPA finds that munitions used for their intended purposes are not “solid waste” for regulatory purposes. See, 62 FedReg. 6621 (Feb. 12, 1997) (The “Military Munitions Rule”). The Rule explains, “[i]n EPA’s opinion, the use of munitions does not constitute a waste management activity because the munitions are not ‘discarded’ .... Rather, the firing of munitions is within the normal and expected use of the product.” Id at 6630. The Rule continues, “[t]his is the same position EPA took regarding the discharge of ammunition and expended cartridges in an interpretative letter... addressing the issue of the ‘applicability of RCRA regulations to shooting ranges.’ ” Id Moreover, the Rule indicates that the EPA took the same position in its amicus brief in Connecticut Coastal Fishermen’s Assoc. v. Remington Arms Co. , wherein it stated the Agency’s views that “lead shot and clay target debris deposited on land and in water in the normal course of skeet and trap shooting” is not “solid waste” and the that its “regulatory jurisdiction does not apply to products that are deposited onto the land in their ordinary manner of use.” Id.; see also Remington Arms, 989 F.2d at 1315 (“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.”). That the EPA formally concludes that lead shot and target debris falling to the ground in the normal course of shooting is not solid waste and not within its RCRA regulatory jurisdiction, strongly suggests that the same type of activity would also fall outside of the agency’s CERCLA remediation jurisdiction.
1. An Air Force report
In another attempt to find official support for their “facility” interpretation, Plaintiffs cite an Air Force report: “Technical Protocol for Determining Remedial Requirements for Soils at Small-Arms Firing Ranges,” prepared by a private engineering firm for the Air Force Center for Environmental Excellence Technology Transfer Division (AFCEE/ERT) at Brooks Air Force Base, Texas. The 30-page document includes only two sentences on the subject of CERCLA, opining that the “[cjleanup of small-arms ranges should generally follow CERCLA. ..and all relevant CERCLA guidance.” See, § 2.2.2.2, page 2-5. The same document relies on the EPA Military Munitions Rule as controlling for the proposition that lead bullets in soils at active and inactive ranges are not considered hazardous waste. Id. at 2-3 (“The Military Munitions Rule presently has the following implications for the Air Force with respect to small-arms firing ranges: Bullets in soils at active and inactive ranges are currently not defined as a solid waste, and therefore would not be considered a hazardous waste while the soils are left in place, even if the soils failed the TCLP test for leaehable lead.”). Simply put, the Air Force report does not help Plaintiffs’ argument.
m. Meaning of term “consumer product”
Finally, Plaintiffs turn from their request for EPA deference and urge their own interpretation of the statutory language. Plaintiffs argue that for the consumer product exception to apply, the shooting range itself must be a consumer product. Plaintiffs then argue, that a trap and skeet range is a business and that it is not a consumer product. This Court disagrees. In order to interpret a statute, a court must construe what Congress enacted by looking first to the plain language of the statute and resorting to legislative history if it clearly indicates that Congress meant something other than what it said. Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001), cert. denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002) (construing the CERCLA term “disposal”) (citations omitted). As mentioned earlier, “facility” is defined in the statute at § 9601(9). According to § 9601(9), the meaning of “facility” excludes “any consumer product in consumer use or any vessel.” The statute defines neither “consumer product” nor “in consumer use.” One commentator has observed that because of the lack of definition, courts have come to different conclusions on the outcome of cases applying the consumer product exception, and that it “is impossible to discern any trend in the courts’ opinions.” 147 A.L.R. Fed. 469 (2006) § 2(a) (“[T]he outcome of the cases in which courts have applied the consumer products exclusion has depended on the various views expressed by the courts with respect to the intended purposes of the exclusion. It is impossible to discern any trend in the courts’ opinions.”). Nevertheless, some guidance can be found in another statute. “Consumer product” was defined by Congress in the Consumer Product Safety Act as follows:
The term “consumer product” means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise....
See, 15 U.S.C. § 2052; Uniroyal Chemical Co., Inc. v. Deltech Corp., 160 F.3d 238, 255 (5th Cir.1998) (quoting definition in Consumer Product Safety Act and finding other similar definitions found in the Fair Packaging and Labeling Act, 15 U.S.C. § 1451, et seq., the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301, et seq., and the Energy Policy and Conservation Act, 42 U.S.C. § 6291, et seq.).
Certainly, according to the C.P.S.C. definition, shotgun shells and clay targets are consumer products as they are products “for sale to a consumer for use ... in recreation” or “for the personal use, consumption or enjoyment of a consumer ... in recreation.” Target shooting with firearms and live ammunition has been a source of recreation and amusement at least since the year 1885 when Annie Oakley joined Buffalo Bill’s Wild West Show and performed extraordinary sharpshooting feats. Shotguns and clay targets are widely sold to consumers in sporting goods stores for recreational target practice and hunting. As a result, it is fair to say that lead shot and target debris that falls to the ground at a non-military shooting range comes from “consumer products.” On this point there is really no dispute. Moreover, it is the act of consumers using these consumer products that results in lead and target debris coming to rest on the ground of a shooting range. A shooting range exists for only one reason: as a place for consumers to safely make use of their firearms, ammunition and targets for recreation or personal use. In other words, lead and target debris comes to be located on a shooting range as a direct result of consumer products being put to consumer use. At the shooting range in this case, the only source of the lead and target debris which came to be located on the site was consumers using these consumer products for target practice. Consequently, shooting range activities fit easily within the ordinary meaning of the consumer product exception language. In the sense of the statute, the site would be a “facility” because hazardous substances came to be located on the range, but because the hazardous substances came to be located on the range because of, and only because of, consumer products being used by consumers, the site is not included in the definition of a “facility.”
n. CERCLA’s odd syntax
Admittedly, § 9601(9) has an odd syntax which one court has described as “a latent ambiguity.” Uniroyal v. Deltech, 160 F.3d at 246 (“We cannot begin our inquiry into [the] meaning of the consumer product exception until we first resolve a grammatical ambiguity hidden within § 9601(9).”). The Deltech court described the grammatical problem this way:
A close reading.. .reveals a significant question as to whether the phrase “but does not include any consumer product in consumer use or any vessel” modifies the overall definition of “facility,” or whether it only modifies the preceding language in subparts (A) and, or, (B).
Id. at 253. The Deltech court and the court in Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746 (7th Cir.1993), adopted an interpretation that parses the language in such a way as to exclude consumer products that are somehow facilities themselves, and not facilities that contain consumer products. Uniroyal v. Deltech, 160 F.3d at 253; Amcast v. Detrex, 2 F.3d at 750. Based on these cases, Plaintiffs urge the related argument that the shooting range, itself, must be the “consumer product” and not a “facility” that contains a “consumer product.”
o. Deltech and Amcast are not persuasive
However, the argument is unpersuasive in this case, First, even the Deltech court acknowledged that other courts have taken the opposite view. Uniroyal v. Deltech, 160 F.3d at 253 (citing National R.R. Passenger Corp. v. New York City Hous. Auth., 819 F.Supp. 1271, 1276 (S.D.N.Y.1993); Vernon Village, Inc. v. Gottier, 755 F.Supp. 1142, 1151 (D.Conn.1990); and Electric Power Bd. of Chattanooga v. Westinghouse Electric Corp., 716 F.Supp. 1069, 1080 (E.D.Tenn.1988)).
Second, both Deltech and Amcast involved tanker trucks that spilled hazardous chemicals used in manufacturing — a far cry from an ordinary target range. In Deltech there was a tanker truck transporting a mixture of vinyl toluene. The tanker had picked up the chemicals from an industrial facility in Alabama and was on its way to another industrial facility in Louisiana. There the chemical mix was to be used for the production of a chemical resin which, in turn, would be used to make other products like paint and glue. Deltech, 160 F.3d at 240 and n. 2. Unfortunately, the tanker truck ruptured at a trucking terminal between the two industrial plants. Not surprisingly, the Deltech court ultimately decided that neither the tanker truck, nor the trucking terminal at which the chemical spill occurred, qualified as a consumer product in consumer use. Id. at 257.
Amcast also involved chemicals spilled from tanker trucks. In Amcast, a manufacturer in Indiana brought in tanker truck loads of a chemical solvent (trichlo-roethylene, or “TCE”) to its plant for the production of copper fittings. When 800 gallons of TCE was discovered in the soil and groundwater beneath an adjacent pharmaceutical plant, it was discovered that the tanker trucks often spilled TCE onto the ground of the copper manufacturer’s plant. Amcast, 2 F.3d at 748. Apparently because neither party argued that the term “consumer product” was limited to only “consumer products used by consumers as distinct from ones consumed by business firms and other institutions,” the court tried to address the question whether the consumer product exception applied to the chemicals in the tanker trucks or the tanker trucks containing the chemicals. Id. at 750. As in Deltech, Amcast found that the tanker trucks spilling manufacturing chemicals were not consumer products in consumer use. Id. Without criticizing the reasoning in either case, the fact patterns are so far removed from the context of a shooting range that the decisions are not persuasive on the question before this Court.
p. Circularity of Plaintiffs’ approach
Third, the view that the shooting range itself must be the “consumer product” requires a bit of circularity in the definition. In Plaintiffs’ view, the shooting range site becomes a “facility” because (the consumer products of) ammunition lead and clay targets (in the consumer use of target practice) come to be located on the site, although the definition of a “facility” specifically excludes consumer products in consumer use. Put differently, following Plaintiffs’ approach, even though a “facility,” by definition does not include consumer products in consumer use, when consumer products in consumer use come to be located on a site, the site becomes a “facility.” Unacceptably, this result either eviscerates the Congressional intent for the consumer product exception or requires a cramped meaning of the concept of “facility.”
q. Absurd results not intended by Congress
To adopt Plaintiffs approach would mean that a shotgun shell would be a “facility” if not for the exception and that a site is a “facility” when it contains only consumer products that would be “facilities” if not for the consumer product exception. This strains the English language. In other contexts, Plaintiffs approach would lead to absurd results. For example, a home would become a “facility” when a student uses lead solder on a science fair project and the yard would become a “facility” when the student’s father spreads lawn fertilizer or pesticide. Meanwhile, the swimming pool would become a “facility” when a bottle of chlorine or muriatic acid is poured into the water during routine maintenance and the garage would become a “facility” when a car battery or a copper pipe is stored there. A water fountain in the public square would become a “facility” when children toss in coins and a lake would become a “facility” when fishermen lose lead sinkers on the bottom.
Surely, Congress did not intend to sweep these places within the classification of CERCLA “facilities.” Admittedly, discerning Congressional intent from the legislative history for CERCLA is “somewhat of a snark hunt.” Carson Harbor, 270 F.3d at 885. Of what exists, little pertains to the consumer product exception. Nonetheless, the fact that no mention is made of a lead accumulation problem on the approximately 9,000 non-military shooting ranges in operation in the country suggests that Congress did not consider the ranges to be a problem. This view is further buttressed by the fact that Congress appropriates $8,000,000 every year to use in hunter safety programs and “the enhancement of construction or development of firearm shooting ranges and aro-hery ranges, and the updating of safety features of firearm shooting ranges and archery ranges,” (see, 16 U.S.C. § 669h-1(a)(1)), and a search of the Federal Register indicates that the Department of the Interior routinely considers proposals to use federal lands for shooting ranges.
r. No CERCLA claim for public shooting range
To sum up, the Court finds that the trap and skeet range site falls within the consumer product exception to the CERCLA definition of a “facility” and that, as a result, there is no private cause of action under CERCLA for recovery of the cost of removing spent ammunition and target debris. Therefore, summary judgment is warranted for all defendants on the CERCLA claim.
2. ADDITIONAL GROUNDS FOR SUMMARY JUDGMENT
If, on the other hand, the consumer product exception does not apply in this case, then the range falls within the definition of a “facility.” However, before liability attaches three additional elements must be proven: first, that there has been an actual or “threatened release” of a hazardous substance from the “facility”; second, that the release has caused Plaintiffs to incur response costs that are both “necessary” and “consistent with the national contingency plan”; and third, that each of the Defendants are PRPs described in § 9607(a). Pakootas v. Teck Cominco Metals, 452 F.3d 1066 (9th Cir.2006); Carson Harbor Village, LTD v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.2006);
a. No Actual or threatened “release”
“The second element of liability under CERCLA is that there must be a ‘release’ or ‘threatened release’ of a hazardous substance from the facility into the environment.” Pakootas, (citing § 9607(a)(4)); A & W Smelter and Refiners v. Clinton, 146 F.3d 1107, 1111-12 (9th Cir.1998). CERCLA defines a “release,” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22).
None of the defendants have moved for summary judgment on the specific ground that there was no release or threatened release. Nevertheless, it is a valid basis for granting summary judgment on this record. The Ninth Circuit has observed, “a district court ‘may grant summary judgment on any legal ground the record supports.’ ” Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1202 (9th Cir.2001) (quoting 6 James W. Moore, Walter J. Taggart and Jeremy C. Wicker, Moore’s Federal Practice ¶ 56.14[1] (1994)); compare Ahmad v. Furlong, 435 F.3d 1196 (10th Cir.2006) (it is an open question whether Federal Rules permit a court to rule on issues only impliedly raised on summary judgment).
It could be argued that using a firearm results in a “release” of lead into the environment of the range. It could also be argued that there is no “release” into the environment when the lead is contained within the site boundaries where it may be thereafter picked up and recycled like golf balls on a driving range — as contrasted against shooting into a waterway and abandoned. In this case, there is no evidence that firearms were discharged into a waterway. As a result, there would be no “release” of hazardous substances into the environment beyond the range site. Once time passes, it could also be argued that accumulated lead shot could be “released” into the environment through leaching or seepage or a weed abatement technique known as “discing” (or “disking”). For example, the Ninth Circuit has held that where wind blows particles of hazardous substances from a pile of waste it is a “release.” See A & W Smelter & Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir.1998). There is no evidence of wind blowing lead shot off of the site in this case. The Ninth Circuit has also held that a corroded drum leaking a hazardous substance on the ground is a “release.” United States v. Chapman, 146 F.3d 1166, 1170 (9th Cir.1998). There is no evidence of corroded containers of lead at the site in this ease. Summarizing these precedents, the Ninth Circuit has recently observed, “our precedents establish that the passive migration of hazardous substances into the environment from where hazardous substances have come to be located is a release under CERCLA.” Pakootas, 452 F.3d 1066 (citing A & W Smelter and Chapman); compare Carson Harbor Village, Ltd., v. Unocal Corporation, 270 F.3d 863 (9th Cir.2001) (the passive migration of contaminants through soil is not a “disposal” under CERCLA).
The evidence is scant in this case as to whether any lead shot has passively migrated into the environment or migrated off the site. There is evidence that lead shot has been found both on the surface of the range and at depths up to two feet and in different places on the range. Lead below the surface is probably the result of past lead reclamation efforts, periodic disc-ing for weed abatement (which tends to homogenize the top three to eight inches of soil depending on the diameter of the disc), or lead pellets falling into deep cracks in the dry, hard surface of the site. See e.g., Declaration of Gary McCue in Support of Plaintiffs’ Oppositions to Motions for Summary Judgment (dated March 8, 2006). McCue is Plaintiffs’ leading geologist and hydrogeologist. McCue notes that, “concentrations of Lead in soil at places throughout the Site exceed 1,000 mg/kg, an order of magnitude higher than the 150 mg/kg lead cleanup goal for soil identified by TRC [the company employing McCue]...; Lead pellets and concentrations of Lead in soil appear at depth throughout the Site, in many cases more than two (2) feet below ground surface....” Id. at ¶3. McCue continues, “one of the main reasons contamination is more widespread and deeper at the Site when compared to a typical trap and skeet range... is the reported disking of Site soil by prior shooting range owners and operators for purposes including weed abatement. . .Disking is a known range management activity that will cause the vertical and horizontal spreading of Lead pellets ....” Id. at ¶ 4. Some of the lead movement may be attributable to Plaintiff Otay Land Company’s own lead removal project in 2000. At that time, Otay Land Company “engaged in a Lead source removal project on the Site that removed more than 42,000 pounds of spent Lead pellets from Site soil.” Id. at ¶ 8. There is no evidence, however, of any lead being found in a landfill on the site or anywhere off of the range site or in watercourses.
The evidence is unclear as to whether lead has “spill[ed], leak[ed], pump[ed], pour[ed], emittfed], emptied], disc-harg[ed], inject[ed], escap[ed], leaeh[ed], dump[ed], or dispos[ed] into the environment” by entering surface or ground water around the range. See 42 U.S.C. § 9601(22). McCue indicates that “concentrations of Lead in groundwater beneath the Site have exceeded applicable regulatory limits.” Declaration of Gary McCue, at ¶ 3. However, in his deposition, McCue indicated that a test well placed in the Otay River flood plain and closest to the target debris field did not detect any lead in the groundwater. See Exhibit 75 (deposition of Gary McCue, Vol. I, at 252-53), attached to Declaration of Derrick K. Watson in Support of Plaintiffs’ Oppositions to Motions for Summary Judgment (dated March 11, 2006). McCue also found no impact in surface water. He testified,
A. Well the way we handle that was we said, okay, let’s sample surface water. We did not find impact in the surface water, and since the goal was to remove the materials anyways, because there was not an intent at any point to leave the material out there, we said, okay, there is no impact today. We don’t need to look into the future because we’re going to remove that material. It doesn’t belong there.
Q. There is no impact, right?
A. In the surface water, is that what you mean?
Q. Correct. That was your conclusion?
A. We collected three samples from the river valley, as I recall, and we did not find impact.
Id. at 256-57 (emphasis added). Consequently, if a “release.. .into the environment” means the environment beyond the “facility” site, there is no genuine issue of fact that lead has not been released into the environment, and summary judgment would be granted for the Defendants. But see Kamb v. United States Coast Guard, 869 F.Supp. 793, 798 (N.D.Cal.1994) (finding “release” where lead concentrations in soil at a shooting range site exceeded 1,000 mg/kg and concentrations in water exceeded 5.0 ml/L).
b. Necessary and consistent response costs and lack of ripeness
The second additional element required for a finding of liability is that the “release” has caused Plaintiffs to incur response costs that are both “necessary” and “consistent with the national contingency plan.” In Carson Harbor Village, LTD. v. County of Los Angeles, 433 F.3d 1260, 1269 (9th Cir.2006), the Ninth Circuit upheld the granting of summary judgment against a CERCLA plaintiff where there was no evidence that the plaintiff has substantially complied with the public participation and feasibility study requirements of the National Contingency Plan. In the present case, no Defendant has moved for summary judgment on this ground although the proposed Pre-Trial Order indicates that it will be an issue at trial. Nevertheless, it is a valid basis for ruling on this record. Jackson Inc. v. Roe, 273 F.3d at 1202.
Of course, if there has been no “release” or threatened release into the environment, then response costs were not necessary. Even if a response were necessary, it appears that Plaintiffs are still in the process of creating their remedial action plan. Only recently (in November of 2005) have Plaintiffs presented their Remedial Investigation and Feasibility Study to the San Diego County Department of Environmental Health. Declaration of Gary McCue, at ¶ 8. It is too early to know whether Plaintiffs will ultimately satisfy the “public participation requirement” or be inconsistent in other ways with the National Contingency Plan. See Carson Harbor, 433 F.3d at 1266 (“The public participation requirement has two main components.”). For this reason, the CERCLA action may not yet be ripe for determination, and therefore, subject to dismissal. See e.g., In re Dant & Russell, Inc., 951 F.2d 246, 250 (9th Cir.1991) (bare assertions that claimant will perform cleanup in the future do not amount to response costs incurred under § 9607(a)); Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 92 (2nd Cir.2000) (awarding plaintiff money for future costs of response remediation is not a remedy available under CERCLA).
c. No “PRPs” because a range is not a place of “disposal”
Even if the range is found to be a CERCLA “facility,” and if there has been a “release” or threatened release into the environment from the facility, and if the Plaintiffs’ response costs have been necessary and consistent with the National Contingency Plan, in order to be made to contribute to the Plaintiffs’ response costs, a Defendant must be a CERCLA potentially responsible party (or “PRP”). In this case, summary judgment is warranted for Defendants because there is no genuine issue of fact that any of the Defendants are PRPs, because in order to be a PRP, there must first be a “disposal” of a hazardous substance. There is no evidence of a “disposal.” Carson Harbor Village, Ltd. v. Unocal Corporation, 270 F.3d 863, 867 (9th Cir.2001) (“Even if we assume that those costs were necessary, we still must decide whether defendants ... are PRPs; if not, summary judgment was nonetheless appropriate. Parsing the meaning of the term ‘disposal’ in § 9607(a)(2) lies at the heart of this question.”).
1. “At the time of disposal”
Under § 9607(a)(1) of CERCLA, a PRP may be a present owner or operator of a facility. None of the Defendants are present owners or operators of the shooting range site and Plaintiffs do not rest their claims on (a)(1). Instead, Plaintiffs claim that Defendants are liable under § 9607(a)(2) and (3). Under § 9607(a)(2), a PRP is “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” (Emphasis added.) Each of the Defendants are alleged to be past owners or operators of the firing range site. Under § 9607(a)(3), a PRP is an “arranger.” That is, “any person who... arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances.... ” (Emphasis added.) All of the Defendants are also alleged to have been “arrangers” of hazardous waste disposal at the site.
2. There must be waste to dispose
“On a motion for summary judgment, the question is whether the fact-finder could infer from all the circumstances that ‘a transaction in fact involves an arrangement for the disposal or treatment of a hazardous substance.’ ” Cadillac Fairview/California, Inc. v. United States of America, 41 F.3d 562, 565 (9th Cir.1994) (focusing on arranger liability). The Achilles’ Heel of Plaintiffs’ approach in this case is that Plaintiffs spend most of their effort on proving Defendants were owners or operators or arrangers of a shooting range, while assuming that an ongoing “disposal” of lead has taken place. This cannot be assumed. Under Ninth Circuit precedent, there are at least two components to a CERCLA “disposal.” On one hand, the hazardous substance must be ivaste. If it is not waste—if instead it is a useful product—then there is no disposal.
3. The useful product defense
CERCLA does not define “disposal” directly. Instead, “disposal” is given the meaning provided in the Solid Waste Disposal Act, 42 U.S.C. § 6903. See, 42 U.S.C. § 9601(29). In § 6903, “disposal” is defined as “the discharge [and so on] of any solid waste or hazardous waste .... ” A & W Smelter, 146 F.3d at 1112 (quoting 42 U.S.C. § 6903(3)) (emphasis in original). In a case about a pile of ore containing small amounts of gold, silver, and lead, the Ninth Circuit explained, “[i]f the ore was a useful product, then it was not waste and not subject to CERCLA. This has been called the useful product defense.” Id.
4. Disposal requires active, not passive, involvement
The other component identified by the Ninth Circuit is an active (not passive) involvement in the discarding of waste. In Catellus Development Corporation v. United States, 34 F.3d 748, 750 (9th Cir.1994), the Ninth Circuit observed “we agreed with other circuits that ‘disposal’ refers ‘only to an affirmative act of discarding a substance as waste, and not to the productive use of the substance.’ ”
In this case, lead came to be located on the site as a result of the productive use of the lead. There is no evidence that lead was dumped on the site from an outside source. There is no evidence that the lead on the site came to be at the site from any activity other than target practice. Target practice or trap and skeet activities surely qualify as productively using lead-containing ammunition. If so, the sporting activity which resulted in lead shot or lead pellets being deposited at the site, is not a “disposal” of lead as contemplated by CERCLA.
5. Spent ammunition is not waste and is not discarded
This is entirely consistent with the official position taken by the Environmental Protection Agency in the 1997 Military Munitions Rule. See discussion of “solid waste” under RCRA, infra. Section G of the Rule finds that spent ammunition is “not a solid waste for regulatory purposes: (1) when a munition is used for its intended purpose...and “[u]nder RCRA, the use of products for their intended purpose, even when the use of the product results in deposit on the land, does not necessarily constitute ‘discard,’ is not waste management, and is not subject to regulation.” 62 Fed.Reg. 6622, at 6628.
Plaintiffs identify no evidence of a Defendant affirmatively acting to discard lead or target fragments as waste in the pedestrian sense of disposing of waste. Moreover, the lead from spent ammunition continues to be useful. It can be collected and sieved and re-loaded into new or reused shotgun shells. In other words, lead pellets sitting in soil on a shooting range are still not “waste.” The record in this case contains undisputed evidence that on several occasions in the history of the range, spent lead shot was gathered and reclaimed from the site. Consequently, without evidence of additional actions by Defendants, all Defendants are entitled to summary judgment on this argument, for none qualify as PRPs without an occurrence of a past hazardous “waste” “disposal.” A & W Smelter, 146 F.3d at