February 14, 2014
Director John Dargle
Milwaukee County Parks
9480 Watertown Plank Road
Wauwatosa, WI 53226
Re: Cudahy Sportsmen’s Club at Warnimont Park
Dear Mr. Dargle:
The Friends of Grant Park had an opportunity to meet with Guy Smith, the Chief of Operations with the Parks Department, at our regularly scheduled meeting last December. At that time we raised the concerns we had with the operation of the Cudahy Sportsmen’s Club in Warnimont Park (hereafter referred to as the “Club”). For some time now our members, and others who have attended our meetings, have expressed concerns about the plastic gunshot wadding that is found up and down the County beaches from Warnimont Park into Grant Park. As you may know our group conducts clean-ups along the beach, some organized, and others informally done by individual members. Suffice it to say that parts of the beach are littered with these waddings throughout the year.
At our December meeting we provided Mr. Smith with pictures of the Club site as well as the area below the bluffs where the trap shooting takes place. Pictures taken at the beach level demonstrated that the hillside between the bluff and the beach is saturated both with gunshot waddings and broken pieces of the clay targets used by the Club. The pictures also demonstrated that the partial fencing put up by the Club at the base of the hillside to catch gunshot wadding and other debris coming down from the bluff was neither properly maintained nor effective in its purpose.
We were contacted sometime after our meeting by Mr. Smith via email on December 17, 2013; he indicated he had spoken with you about this and that you shared our concern and would be meeting with the Club in attempts to remedy this situation. On Tuesday of this week, February 11, 2014, our group received an email from the Club’s President, Tom Ahmad, informing us for the first time that a meeting had indeed occurred between your office and the Club, and requesting that we set up a time to meet and discuss our concerns. Given the Friends of Sheridan Park’s busy schedule (they had been included on the Club’s email ) with their centennial, they have asked that we try to schedule a meeting with the gun club sometime in March. We will be following through on that.
In any event, having learned that a meeting took place, we then contacted Mr. Smith in hopes of hearing how the meeting with the Club had gone and what position Parks had taken. I was able to speak with Mr. Smith on Thursday, February 13th, and received a summary of major points discussed. I at that point informed him that this letter, which had been drafted over the course of the last two weeks and prior to our learning that you had already met with the Club, would be coming your way.
The purpose of this letter is to bring to your attention other concerns we now have based on recent research conducted by some of our members after meeting with Mr. Smith at our December 17th meeting. These concerns go well beyond the issue of the plastic waddings. We provide this information to you in hopes that it brings home the seriousness of the situation and the need for an effective remedy.
SUMMARY OF INFORMATION PREVIOUSLY PROVIDED
Let me start with a more thorough summary of the information we shared with Mr. Smith at our December meeting. Our visit to the Club site was prompted by an interest in determining what the Club was and was not doing to prevent the gun shot wadding from getting into the lake. In particular we had been told that the Club, in response to complaints received some time ago, had erected a type of netting or fence at the foot of the bluff to catch the shotgun waddings and pieces of clay targets that were deposited on the hillside and later washed down to the beach. Upon examining the scene, several things became apparent.
First, there seems to have been no attempts to clean up the site on a regular basis. A lack of clean-up activity is evidenced if one walks the bluff area where the clay targets are discharged and where the members fire from. There is a five or six-foot width of grassy area at the very
edge of the bluff and east of the boxes from which the clay targets are released. This would be the easiest place at which to pick up discarded shotgun waddings as it is level ground and easily walkable. However, our examination of that area, which occurred in late November and after the shooting season had ended, found that it was saturated with shotgun waddings. One would expect, with heavy rains, that these waddings would eventually find their way to the hillside, down to the beach, and then into the lake. Despite the ease with which these waddings could have been collected following each day’s shooting, this apparently was not done.
Second, glancing over the bluffs from above, one can easily see the results of years of use of the site. As mentioned above and as demonstrated by the pictures, the hillside is covered with the waddings and pieces of clay targets. All of this material will inevitably, given the angle of the slope of the hillside and normal erosion, wash down onto the beach and ultimately into the lake.
Third, an examination of the netting at the bottom of the hillside clearly demonstrates that it has not been properly maintained. The netting only covers approximately one-quarter of the width of the Club’s site. Therefore the residue from any trap shooting that takes place on the other three-quarters of the site, that is, from the 5 or 6 southerly firing positions, not only lands on the hillside, but is washed unimpeded onto the beach. The beach area covered by the netting fares little better. Tears in the netting render it dysfunctional.In several spots the rain had caused erosion and subsequent gulleys running beneath the netting and directly onto the beach. The gulleys themselves were filled with waddings and the pieces of clay targets. In another part soil washing off the hillside came over the top of the netting itself. It was not surprising then that one could easily find shotgun wadding and pieces of clay targets littering the beach just below the site.
Various sections of the lease executed between the County and the Club call for the latter to properly maintain the property. Thus Sec.10.08 requires the Club to “maintain, replace, and keep in good order and repair, and in a safe and sanitary condition the entire leased premises.” It also indicates that the Club will be responsible for any “repair, clean-up, remediation or detoxification arising out of any Hazardous Materials brought or released onto the leased premises.” (Sec. 10.02) As will be described below, the lead shot which we believe the Club probably is using is toxic, and thus ought to be considered hazardous materials. The lease itself draws on definitions of “Hazardous Materials” used by the Comprehensive Environmental
Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act. (Sec. 10.02). Case law set out below has previously found that these kinds of materials generated by trap and skeet gun clubs fall within this definition. Finally, the lease states that the Club and not the County will carry the burden of any environmental remediation that is necessary during the life of the lease.(Sec. 9.02, 10.01). However, as will be discussed below and as demonstrated by case law, our concern is that the County itself will not be protected from potential future costs of remediation by this term in the lease. In any event, given the current state of the premises, it seems apparent that the Club has not taken the necessary steps to maintain the premises in an environmentally sound manner as called for in the lease.
HEALTH AND ENVIRONMENTAL CONCERNS
The Club has been operating at the Warnimont Park site for decades. It is probably safe to assume that at the time they located there and the County first approved of the lease arrangement, many of the safety, health and environmental concerns that have developed around these kinds of sites over the past 10-15 years were unknown. However, our research has confirmed that it is no longer open to question as to whether or not environmental and health hazards flow from this type of activity. More importantly, a review of the scientific and regulatory literature on this issue establishes that the bluff and lakefront area upon which the Gun Club sits is absolutely the worst kind of site for this kind of activity.
The information shared in this section as to the appropriateness of the Warnimont Park site for the Club activities comes from several manuals and other sources. Primarily, these include:
(1) The Environmental Protection Agency’s, Best Management Practices for Lead at Outdoor Shooting Ranges, E.P.A.-902-B-01-001, rev. June 2005 (hereinafter cited as “Best Management Practices”; full document is accessible at: www.epa.gov/superfund/lead/products/firing.pdf
(2) The Environmental Protection Agency’s TWR Recommendations for Performing Human Health Risk Analysis on Small Arms Shooting Ranges, OSWER No. 9285.7-37, March 2003 (hereinafter cited as “TWR Recommendations”; accessible at: www.epa.gov/region2/waste/leadshot/epa_bmp.pdf
(3) Environmental Management and Operating Outdoor Small Arms Firing Ranges, prepared by the Interstate Technology Regulatory Council, Small Arms Firing Range Team, February 2005 (hereinafter cited as “I.T.R.”; accessible at www.iowadnr.gov/portal/1dnr/uploads/LawEnforcement/enviro_mgmnt.pdf?amp; tobid=986 .
A clear consensus among the authorities cited above is that these kinds of shooting ranges should not be located near wetlands or other waterways. According to the E.P.A., “Shooting into water bodies or wetlands should not occur.” (Best Management Practices, Sec. 2.2 pg. II-4).
After warning clubs which are located in this kind of setting of their susceptibility to litigation and/or government action the document states, “Shooting into water bodies or wetlands is NOT an option for ranges that want to survive in the future.” (Best Management Practices, Sec. 2.2 pg. II-4)
This strong language followed on the heels of a summary of environmental and health issues raised by the lead shot winding up in bodies of water, in this case Lake Michigan.
While it is uncertain, Friends of Grant Park believes that the Club may be using lead shot at the site. Sec. 10.10 of the lease between the County and the Gun Club requires the club “to take such steps as are necessary to insure that lead shot is not used” if “lead shot should be prohibited at the site” based on federal or state law. It seems apparent that at the time the lease was signed it was thought that at some point in the future lead shot would be prohibited at these kinds of gun club sites.
While alternatives to lead shot have been developed, the resources cited above indicate that the vast majority of the shot used at these gun clubs are lead-based. Further, even if the Gun Club asserts that it has a rule against lead shot, it is difficult to believe that such a rule could be effectively enforced. Our understanding is that the Club sells its own shotgun cartridges at the site but that members can also bring their own. Unless the club is inspecting each such cartridge it would be impossible to determine whether the rule is being complied with. The resources set out above indicate that the preference for lead shot is economically based, as they are cheaper than other forms. Likewise others believe that lead shot is simply more effective and efficient in trap shooting. It may be that the only way to enforce such a prohibition would be to require that only shells sold by the Club could be used at the site and that only non lead shot be sold. Such a process could be more easily monitored by the County to make sure that lead shot was not used.
Assuming that the Club is using or has ever used lead shot, this raises grave concerns. Given the layout of the Club’s site, the vast majority of the lead shot will wind up in Lake Michigan. As I am sure you know, the shotguns used are fired in the direction of the lake. There is no barrier between the person firing and the lake itself. Beyond this, the distance between the
site and the lake falls well within the “fall range” of the shot. Depending on the kind of lead shot used and the angle of the clay targets when they are released, shot will travel anywhere from 100 yards to 300 yards. (“TWR Recommendations, p. 8; I.T.R., p. 19). Lead shot that doesn’t make it to the lake directly but lands on the hillside poses the same health and environmental risks, as it too would eventually wash down into the lake. The E.P.A. Manual quoted above spends a considerable amount of time advising gun clubs how to control for runoff to prevent lead from migrating off-site as a result of surface water and other factors. (Best Management Practices, pg. III-8).
The health effects to humans from lead exposure have been well documented over the years and are described at length in Best Management Practices, pp. I-4, and I-5. The lead on the hillside, on the beach, and in the water is likewise a hazard to waterfowl and other birds. As the E.P.A. points out, it is not unusual for waterfowl to ingest the shot directly, mistaking it for food and grit. (Best Management Practices, p. I-4). “Numerous studies have documented the risks to waterfowl. The risk is especially high if spent shot falls into wetlands or water where waterfowl may feed.” (I.T.R. p. 14). It is for this reason that as long ago as 1991 the use of lead shot was banned for the hunting of waterfowl. It is illogical that hunters permitted to shoot waterfowl on Lake Michigan are not permitted to use lead shot while an activity that deposits hundreds of times more lead into Lake Michigan goes unabated.
The clay targets themselves contain hazardous materials. While biodegradable clay targets are available, it is our group’s understanding that the clay targets used at the Club site use binding material which is petroleum based and are therefore at least pollutants, and some would argue toxic.
Further demonstrating that locating the Club on the lake shore at the Warnimont Park site was ill advised in the first instance is the fact that many of the acceptable modes of limiting environmental damage as the result of the operation of these kinds of gun clubs could not be implemented here. Both the E.P.A. and the Interstate Technology and Regulatory Council/Small Arms Firing Range Team have developed protocols for trap clubs of this sort to implement in the hopes of not only reducing environmental damage, but to help them avoid litigation by federal and state regulatory bodies, or citizens groups. These “best practices” call for the following:
1. Realigning the shooting stands and the angles and trajectories of clay targets to concentrate the spent shot in a smaller area and keep it away from sensitive areas such as waterways. Such would be impossible at the Warnimont site. Changing the angle of the shooting stands in any direction would only bring the line of fire into a direct line with a parking lot, the golf course, or the bike trail.
2. Use of barriers such as shot curtains or berms to control lead shot and plastic wadding dispersion. The problem here is that there is insufficient space between the shooting stands and the bluff to erect any kind of shot curtain, berm, or for that matter, additional vegetation.
3. Controlling runoff by planting vegetative ground cover, use of mulches and compost, removable surface covers, and other kinds of engineered runoff controls. Again, none of this is workable at the Warnimont site. The majority of the shot reaches the lake before falling to the ground. The pitch of the hillside and its sensitive nature is not conducive to the use of any of these practices for the shot falling on the hillside.
4. Lead reclamation via hand raking or sifting, screening, vacuuming the shot and soil washing. Once again, while the EPA strongly recommends these practices, none could be used to reclaim the shot that is falling onto the hillside.
Best Management Practices, p. III-1, III-22; I.T.R., p. 25-57.
APPLICABLE FEDERAL LAW
Our research has also convinced us that the nature of the operation at the Gun Club site is most likely in violation of federal law. In 1993 in Connecticut Coastal Fisherman’s Assoc. v. Remington Arms Co., Inc., 989 F.2d 1305 (2nd Cir. 1995) the United States Court of Appeals for the Second Circuit ruled that the Federal Resource Conservation and Recovery Act (R.C.R.A.) applied to the kinds of trap shooting operation we have here. It first held that the R.C.R.A. authorizes citizens groups, states or municipalities or the E.P.A. to bring suits if a gun club’s shooting activity posed an “imminent and substantial endangerment to the health or the environment.” More importantly here, the court also held that gunshot and clay targets met the statutory definition of “solid waste” where these materials were “discarded or abandoned,” that is, “left to accumulate long after they have served their intended purpose.” The court also concluded that based on toxicity testing and evidence of lead contamination, the lead shot was a hazardous waste subject to the R.C.R.A., as it was found to pose an imminent danger to waterfowl. Based on the Remington Arms case the E.P.A. concluded that it can bring legal action
against this kind of club as well as the owner of the property in question, in cases where the lead shot and clay target debris is left to lay, as has been the case here, as opposed to being recovered and reclaimed on a regular basis. (Best Management Practices, p. I-7). It is for this reason that the E.P.A. Manual advises gun clubs to institute lead shot removal practices and to keep records of same. As pointed out above the typical lead reclamation procedures recommended by the E.P.A. would not be available for this gun club. Given this ruling the E.P.A. advises that “Gun clubs, where they are shooting into water, wetlands, rivers, creeks and other sensitive environments, have the highest degree of litigation risk.” (Best Management Practices, p. I-7).
The Club’s use of the site at Warnimont Park also implicates the Federal Clean Water Act. The Clean Water Act prohibits discharging pollutants into navigable water from a point source without a permit. 33 U.S.C. § 1311(a) and 1342. Federal courts have found, in cases filed against other gun clubs, that the kind of activities engaged in by the Club fall within the Clean Water Act.
In one such case, the United States District Court for the Southern District of New York, in Long Island Sound Keeper’s Fund v. New York Athletic Club sided with the E.P.A. on a number of issues. Evidence showed that shot from the club fell into the Long Island Sound. First, the court found that the mechanized target throwers used in a trap shooting operation and the shooting range itself were considered “point sources” as that term was defined by the Clean Water Act, therefore bringing the gun club within the coverage of the law. More importantly it found that expended shot, including nontoxic shot such as steel shot, which the club was using there, as well as target debris, when left in the water, were pollutants as defined by the Clean Water Act. The court issued an injunction against the club prohibiting further shooting at the site unless a permit was approved. The club never resumed the activity.
The Illinois Attorney General apparently interpreted the Clean Water Act in a similar fashion when filing a federal lawsuit against the Lincoln Park Trap Club which operated right on the shores of Lake Michigan in Chicago in 1991. The suit alleged that discharging lead shot, clay target materials and plastic shell wadding into the lake without a federal permit violated federal law. Apparently out of concern that it could be liable itself for the pollution and the costs of clean-up, the Chicago Parks District, which had a lease with the Lincoln Park Trap Club, served it with an eviction notice. The Club then vacated the premises. It was estimated that by that point 400 tons of lead shotgun pellets had been deposited into Lake Michigan at the site. It was further
estimated that 37.5 tons of toxic lead and 75 tons of clay targets were deposited into the lake each year as a result of the club’s activities. (Articles describing the history of the Lake Park Trap Club and the litigation in the 1990′s can be found by Googling “Untimely Shooting at the Gun Club,” Chicago Tribune, April 30. 1991.)
In Stone v. Naperville Park District, 38 F.Supp.2d 651 (1999) the U.S. District Court for the Eastern District of Illinois likewise found that the Naperville Park District as well as the Naperville Sportsmans Club were violating the Clean Water Act as a result of discharging lead shot into the lakes near their Club. The Park and the gun club had leased the property from the city. At one point the E.P.A. inspected the premises and issued a letter to the gun club giving its opinion that it needed to seek prior approval via a permit to trap shoot at the site. In the litigation the defendant gun club itself agreed that the lead shot and the clay targets were “pollutants” under the Clean Water Act. However, they attempted to argue that their shooting range and firing stations did not constitute “point sources” under the Act. The court disagreed, finding that the Clean Water Act applied. The only issue was to determine issues of civil penalties and litigation costs that the club would be liable for.
A third federal statute implicated here is the Comprehensive Environmental Response, Compensation and Liability Act, which imposes liability on past and present owners or operators of property which are releasing or have released hazardous substances into the environment. Under the Act, the E.P.A. has authority to order the owner of the property or its occupier to clean up a site. The E.P.A. has applied C.E.R.C.L.A. to outdoor shooting ranges and the owners of the property on which the shooting range sits, to order payment of clean-up costs. This should be of particular concern to the County, which is leasing this property to the Club. Two examples where the E.P.A. has taken such action under C.E.R.C.L.A. will be mentioned.
First, in 1992 the E.P.A. took action against the Southern Lakes Trap and Skeet Club in southern Wisconsin following an investigation by the United States Fish and Wildlife Service into the death of over 200 Canada Geese as a result of acute lead poisoning after ingesting lead shot. The investigation established the lead shot came from the gun club. After notice to the property owners that E.P.A. action was being taken, the club closed. However, the E.P.A. issued an administrative order against one current and one former owner of the property where the trap club had been located. The order required the owners to perform a site assessment and to
generate an estimate of the cost to restore the damaged wetlands. After the E.P.A. performed the clean-up it recouped a million dollars in clean-up costs from the owners.
As another example, in Walter A. Kamb v. United States Coast Guard, the court ended up applying C.E.R.C.L.A. against the Coast Guard which had operated a rifle, pistol and trap range on certain property. Mr. Kamb, on behalf of certain property owners, sued the Coast Guard after soil analysis indicated the presence of lead from lead shot, bullets and pellets. The court found that the Coast Guard was liable for the clean-up costs. Both these cases are summarized in Best Management Practices, pp. I-11 – I-12.
The continued operation of the Club therefore poses a difficult dilemma for the County Parks. There can be no question but that by today’s environmental standards, the location of the Club on the bluffs of Lake Michigan was terribly ill-advised. During the months that it operates it is believed the Club continues to deposit prohibited materials directly into the lake, in violation of the Clean Water Act. The geography of the site is such that the recommended procedures for preventing or remediating damage caused by these activities cannot be utilized. Finally, unless the Club has previously secured the appropriate federal permit, it appears that their activities are in violation of federal law.
We appreciate all the time and effort you have put into this matter to date, as well as your consideration of the concerns raised above. We look forward to having the opportunity to discuss the various issues this letter raises after you have had an opportunity to consider same.
FRIENDS OF GRANT PARK
February 14, 2014