In Otay Land Co. v. U.E. Ltd., L.P., 440 F. Supp. 2d 1152 (S.D. Cal. 2006), the court, deferring to an Environmental Protection Agency (EPA) rule, held that spent lead-containing ammunition at a shooting range is not a solid waste under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6921 et seq., EPA munitions rule because the lead ammunition is not a discarded material but rather the result of the “normal and expected use of the product.” Otay Land, 440 F. Supp. 2d at 1166.
In Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004), the issue was whether grass residue remaining after a Kentucky bluegrass harvest is “solid waste” under RCRA. A citizen group had challenged the practice of open burning of Kentucky bluegrass residue, alleging that it posed an “imminent and substantial endangerment” under 42 U.S.C. § 6972(a)(1)(B). Id. at 1038. The Ninth Circuit ruled that the grass residue does not constitute “solid waste” and affirmed the district court’s dismissal of the citizen suit. Relying on decisions in Ass’n of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000), and United States v. ILCO, Inc., 996 F.2d 1126 (11th Cir. 1993), the court applied the following three-part test to determine whether the residue was a solid waste:
(1) whether the material is “destined for beneficial reuse or recycling in a continuous process by the generating industry itself”;
(2) whether the materials are being actively...
