CHAPTER 3 EMERGING FRAMEWORKS FOR PUBLIC LANDS CLEANUP

• Jurisdiction: United States

Cleaning up the Public Domain: The Next Frontier
(Mar 1996)
CHAPTER 3
EMERGING FRAMEWORKS FOR PUBLIC LANDS CLEANUP
Roger L. Freeman
Davis, Graham & Stubbs, L.L.C.
Denver, Colorado
Max Dodson
Ecosystems Protection and Remediation Environmental Protection Agency, Region VIII
Denver, Colorado
Harold Barnes
Homestake Mining Company
San Francisco, California

CERCLA	CLEAN WATER ACT
1. Scope	Applies to all threatened or actual releases of "hazardous substances" into the environment	Applies to discharges of "pollutants" into waters of the United States (increasingly encompasses groundwater)
2. Agency Delegation	CERCLA authority clearly delegated to federal agencies with stewardship role over particular lands	Federal/state delegation issues often result in jurisdictional concerns
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3. Cleanup Standards	Broad set of "ARARs" generally set cleanup parameters	Ambient water quality standards for particular stream segment are key standards
4. Duration of Cleanup/Flexibility	As opposed to remedial actions, CERCLA "removal" actions are limited in duration and scope — Action Memoranda can be promptly issued and can exhibit some flexibility	Difficult to develop "cleanup" protocols under point source program; non-point source program has potential applicability but continually faces funding limitations
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5. Permitting Issues	CERCLA contains permit exemption — 42 U.S.C. 9621(e)(1) — can streamline project	Difficult to predict when NPDES permit can be terminated, causing long-term liability concerns; emerging "Good Samaritan" clause may alleviate some concern. Emerging stormwater permit for inactive mine cleanups can be useful
6. Potentially Liable Private Parties	Current and prior owner/operators;

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