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Cleanup of Mining Waste Sites: How Clean Must Clean Water Be?

Gail L. Wurtzler, Proceedings of 39th Annual Rocky Mountain Mineral Law Institute (1993)

This paper first discusses the determination of what is protective of human health and the environment as a technical and policy matter. Second, it examines the legal framework under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),1 as amended by the Superfund Amendments and Reauthorization Act (SARA),2 for achieving protection of human health and the environment. Third, the paper reviews selection of Applicable or Relevant and Appropriate Requirements [11-3] (ARARs) and cleanup goals and waiver of ARARs for a number of mining waste sites in the Rocky Mountain region and elsewhere. Finally, the paper identifies some approaches to consider when determining cleanup standards under CERCLA and possible alternatives to the traditional CERCLA process.

§ 11.02 Protectiveness

[1] Risk as a Measure of Protectiveness

As a technical or scientific matter, protectiveness is inextricably linked to risk. Protectiveness reflects a determination of an acceptable level of exposure to a metal, organic compound, or other substance. The determination of an acceptable level of exposure is based upon risk assessment or the scientific estimate of the probability of harm from exposure to a particular substance.3

Risk assessment involves consideration of the chemicals or other substances present, their molecular form and bioavailabil