Spent lead ammunition at outdoor shooting ranges remains a significant 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 fashion to minimize the impact. Lead contamination is a known issue in the shooting community, remains an issue at ranges in many states, and has resulted in several recent major, sometimes multi-million dollar, remediation efforts. In 2021, the owners and operators of a Maryland shooting range settled a citizen lawsuit on the condition that the owners address the existing lead in the soil, surface water and wetlands, redirect certain shooting stations away from wetlands, and conduct regular sampling to check for contamination.

With that said, the civilian outdoor shooting range industry remains largely unregulated. In 2001, the U.S. Environmental Protection Agency (“USEPA”) developed a guidance manual called “The Best Management Practices for Lead at Outdoor Shooting Ranges” (EPA-902-B-01-001; revised in June 2005) (the “BMP Guidance”). The BMP Guidance provides owners and operators with information on lead management at their outdoor shooting ranges, including:

• The impact of lead on human health and the environment;
• The impact of existing environmental laws and regulations on shooting ranges;
• Physical site characteristics to consider when establishing a BMP (such as size, soil characterizations, topography, precipitation, ground and surface water, and vegetation)
• Operational characteristics to consider (such as volume, size of shot, direction and patterns, range life expectancy, and closure); and
• The importance and implementation of an integrated Best Management Practices (“BMP”) program to manage lead (such as shot containment, prevention of migration, removal of lead, lead recycling, and record keeping).

Although not official rulemaking by the USEPA, this document remains the best guidance on environmental concerns, applicable laws, and regulations, and best management practices at outdoor shooting ranges. While there is much to discuss in the BMP Guidance, the purpose of this post is to highlight the most important aspects of the applicable laws and their implications to shooting ranges.

While no federal environmental regulations specifically focus on outdoor shooting ranges, case law and the BMP Guidance from the USEPA demonstrate that citizen lawsuits have been filed against shooting range owners and operators based on violations of the following environmental laws: the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901 et seq.; the Clean Water Act (“CWA”), 33 U.S.C. §1251 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §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 the management of solid and hazardous waste in the United States. Spent lead ammunition is not considered a hazardous waste subject to RCRA at the time it is discharged 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, spent lead ammunition that is discarded, abandoned, and “left to accumulate long after they have served their intended purpose,” could be subject to the broader definition of “solid waste” in the statute. If the solid waste exhibits a hazardous waste characteristic, such as toxicity (as is the case with lead), it would need to be treated and disposed of as hazardous waste subject to RCRA. On the other hand, if the spent lead ammunition is actively managed, reclaimed, and regularly recycled, it is considered a scrap metal and is therefore exempt from RCRA regulation. Thus, USEPA recommends regular removal of lead as a BMP.

Sections 7002 and 7003 of RCRA allow the USEPA, states, or citizens, using a civil lawsuit, to compel cleanup of “solid waste” (e.g., spent lead ammunition) that poses actual or potential imminent and substantial endangerment to public health and/or the environment. According to the BMP Guidance, outdoor shooting ranges that have not reclaimed and removed lead regularly, and ranges where the shotfall zone impacts water, rivers, creeks, wetlands, and other sensitive environments, are at an increased risk for government action or citizen lawsuits under RCRA. Therefore, civilian shooting ranges may be at an increased risk for government action or citizen lawsuits.

Clean Water Act

The CWA prohibits anyone from discharging pollutants, including lead, through a point source into waters of the United States unless that discharge is permitted. Case law and the BMP Guidance demonstrate that: (1) lead and other types of shot, entering and left in the water, are pollutants as defined by the CWA; (2) mechanized target throwers, concrete shooting platforms, and the outdoor shooting range itself may be considered point sources under the CWA; and (3) that waters of the United States may include lakes, ponds, rivers, streams, wetlands, or even intermittent waterbodies. Like RCRA, USEPA, states, and citizen groups have used the CWA to compel cleanup of contaminated sediments and soils at unpermitted outdoor shooting ranges that allow the discharge of spent lead ammunition into water. Therefore, civilian shooting ranges may be at a risk for government action or citizen lawsuits under the CWA based on the existence of the streams, ponds, and potential wetlands, in the shotfall zone, if found to be waters of the U.S.

Comprehensive Environmental Response, Compensation and Liability Act

CERCLA imposes strict joint and several liability on past and present owners and operators to clean up contaminated property where a release of a hazardous substance has occurred. Lead is considered a hazardous substance under 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 shooting ranges may be liable for costs incurred due to a remediation of a shooting range, natural resources damages, and health assessments and/or health effects studies.

State Regulation

This is not a 50-state survey of states’ specific laws, regulations or environmental guidance for outdoor shooting ranges. However, the BMP Guidance does note that “at the time of printing, about 40 states had contacted the EPA and given their support and concurrence. EPA is continuing to get the agreement of the remaining states. Therefore, it appears that most, if not all, states will share the same view as to how lead shot is regulated.” The BMP Guidance does not identify which states support the approach, but it is likely that most states concur with at least the basic regulatory principles.

Cleaning Solvents Contamination

In addition to spent lead ammunition, gun cleaning solvents and metal degreasers may also contribute to soil contamination. Outdoor shooting range owners and operators would be well served to restrict gun cleaning to specific areas where there are steps taken to avoid discharge of such solvents to the ground.

Conclusions

Owners and operators of shooting ranges need to remove the spent lead ammunition and implement the remaining BMPs outlined in the BMP Guidance. This may allow owners to minimize contamination, reduce potential impacts to human health and the environment, potentially reduce liability with regard to potential agency or citizen lawsuits, and possibly benefit economically from the recycling of lead.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained 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 information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot 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 which complies with IRS rules and may be relied upon to avoid penalties.

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