Spent lead ammunition at outdoor shooting ranges remains an important environmental topic, as accumulated lead can pose a threat to human health and the environment if best management practices are not implemented in a timely manner to minimize the impact. Lead contamination is a known problem in the shooting community, remains a problem in many states, and has resulted in several major, sometimes multimillion-dollar, remediation efforts. In 2021, the owners and operators of a Maryland shooting range settled a citizen lawsuit on the condition that the owners deal with existing lead in the ground, surface water and wetlands, redirect certain shooting stations away from wetlands and carry out regular sampling to check for contamination.
That said, the civilian outdoor range industry remains largely unregulated. In 2001, the United States Environmental Protection Agency (“USEPA”) developed a guidance manual entitled “The Best Management Practices for Lead at Outdoor Shooting Ranges” (EPA-902-B-01-001; revised in June 2005) (the “BMP Guidance”). The BMP Guidelines provide owners and operators with information on managing pellets at their outdoor ranges, including:
- The impact of lead on human health and the environment;
- The impact of existing environmental laws and regulations on ranges;
- Physical features of the site to consider when establishing a BMP (such as size, soil characteristics, topography, precipitation, ground and surface water, and vegetation)
- Operational characteristics to consider (such as volume, shot size, direction and patterns, scope life expectancy and closure); and
- The importance and implementation of an integrated Best Management Practices (“BMP”) program to manage lead (such as shot containment, migration prevention, lead disposal, lead recycling and record keeping).
Although not official USEPA regulations, this document remains the best guide to environmental concerns, applicable laws and regulations, and best management practices at outdoor shooting ranges. Although there is much to discuss in the BMP guidelines, the purpose of this article is to highlight the most important aspects of the applicable laws and their implications for shooting ranges.
Although no federal environmental regulations focus specifically on outdoor shooting ranges, case law and USEPA BMP guidelines demonstrate that citizen lawsuits have been filed against owners and operators of shooting ranges for violations the following environmental laws: the Resource Conservation and Recovery Act (“RCRA”), 42 USC §6901 et seq.; the Clean Water Act (“CWA”), 33 USC §1251 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 USC §9601 et seq.; and state law equivalents. Below is a brief discussion of each.
Resource Conservation and Recovery Act
RCRA provides the “cradle to grave” framework for solid and hazardous waste management in the United States. Spent lead ammunition is not considered RCRA hazardous waste at the time it is unloaded from a firearm because it is used for its intended purpose. Thus, an outdoor shooting range is not considered a hazardous waste generation, storage, treatment or disposal facility and is not required to obtain a RCRA permit.
However, used lead ammunition that is discarded, abandoned and “left to accumulate long after it has served its intended purpose” could be subject to the broader definition of “solid waste” in the law. If the solid waste exhibits a hazardous waste characteristic, such as toxicity (as is the case with lead), it will need to be treated and disposed of as a RCRA hazardous waste. On the other hand, if used lead ammunition is actively managed, recovered, and regularly recycled, it is considered scrap metal and therefore exempt from RCRA regulations. Thus, the USEPA recommends regular disposal of lead as BMP.
Sections 7002 and 7003 of RCRA allow the USEPA, states, or citizens, through civil suit, to compel the cleanup of “solid waste” (e.g., spent lead ammunition) that present an actual or potential imminent and substantial danger to public health and/or the environment. Per BMP guidelines, outdoor shooting ranges that have not regularly collected and disposed of lead, and shooting ranges where the drop zone impacts water, rivers, streams, wetlands and other sensitive environments, are at increased risk of government action or citizen lawsuits under RCRA. As a result, civilian firing ranges may be at increased risk of government action or citizen lawsuits.
Clean Water Act
The CWA prohibits anyone from discharging pollutants, including lead, by a point source into United States waters unless such discharge is authorized. Case law and BMP guidelines demonstrate that: (1) lead and other types of shot, entering and remaining in water, are pollutants as defined by the CWA; (2) mechanized target launchers, concrete firing platforms, and the outdoor firing range itself may be considered point sources under the CWA; and (3) that the waters of the United States may include lakes, ponds, rivers, streams, wetlands, or even intermittent bodies of water. Like the RCRA, the USEPA, states and citizen groups have used the CWA to compel the cleanup of contaminated sediments and soils at unauthorized outdoor firing ranges that allow the release of lead ammunition used in water. Therefore, civilian firing ranges may be subject to government action or legal action under the CWA due to the existence of watercourses, ponds and potential wetlands, within the area of shot, if it turns out to be United States waters.
Comprehensive Environmental Response, Compensation and Liability Act
CERCLA imposes strict joint and several liability on past and current owners and operators to clean up contaminated properties where a release of a hazardous substance has occurred. Lead is considered a hazardous substance according to CERCLA. CERCLA is often used by the USEPA or a private party that has remediated a property to recover its costs. Case law and USEPA guidance show that owners and operators of outdoor firing ranges can be held liable for costs incurred as a result of range restoration, damage to natural resources, and assessments. health and/or health effects studies.
This is not a 50-state survey of specific state environmental laws, regulations, or guidelines for outdoor shooting ranges. However, the BMP Guidance notes that “at the time of printing, approximately 40 states have contacted the EPA and provided their support and agreement. EPA continues to seek agreement from the remaining states. Therefore, it seems that most, if not all, states share the same view on regulating lead shot. The BMP Guide does not identify states that support the approach, but it is likely that most states agree with at least the basic regulatory principles.
Contamination by cleaning solvents
In addition to used lead ammunition, gun cleaning solvents and metal degreasers can also contribute to soil contamination. Owners and operators of outdoor shooting ranges would be well advised to limit gun cleaning to specific areas where steps have been taken to prevent these solvents from spilling onto the ground.
Range owners and operators should remove spent lead ammunition and implement remaining BMPs described in the BMP Guidelines. This can allow owners to minimize contamination, reduce potential impacts on human health and the environment, potentially reduce liability with respect to potential lawsuits from agencies or citizens, and potentially benefit economically from recycling the lead.
The opinions and conclusions in this article are solely those of the author, unless otherwise stated. The information in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for informational purposes only and, in doing so, does not adopt or incorporate the content. Any federal tax advice provided in this communication is not intended or written by the author to be used, and may not be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format that complies with IRS rules and that you can rely on to avoid penalties.