CERCLA, institutional controls, and the legacy of urban industrial use.

Author:Fox, Sarah
  1. INTRODUCTION A. City, Suburb, City B. The Legacy of Prior Uses II. CLEAN-UP TOOLS A. The Passage of CERCLA B. Amendments to CERCLA and limits on liability C. Review of Remedies Selected Under CERCLA D. State Remediation Programs III. OPTIONS FOR CLEAN-UP A. Unenforceability of Institutional Controls B. Failure of Institutional Controls 1. Failure Based on Improper Implementation 2. Failure Based on Inadequate Institutional Controls IV. LIVING WITH INSTITUTIONAL CONTROLS, POST-FAILURE A. Agency Review B. Liability for Inadequate Institutional Controls 1. CERCLA Response Costs 2. Challenges to Selected Remedies 3. Other Federal Remedial Options 4. State Law Remedies 5. Allocating Responsibility V. CONCLUSION I. INTRODUCTION

    As the nineteenth century dawned, a mere 15% of the world's population lived in urban areas. (1) The United States reflected that trend; although "American cities grew steadily throughout the first seventy-five years of nationhood," economic and transportation realities ensured that they "remained relatively small in geographic area and population." (2) But by the second half of that century, "[u]rban population growth [in the United States] accelerated" and "continued steadily throughout the next hundred years." (3) People began to flock to cities, where industry, commerce, and residences coexisted in dense clusters of mixed uses. In 1920, the U.S. Census revealed that, "for the first time, more Americans lived in urban than rural settings." (4) The years following World War II, however, saw a monumental shift from the cities into the suburbs. Although the drift of people beyond the urban core was far from a new phenomenon, (5) a variety of policy choices and social shifts in the post-war era combined to cause "tens of millions of people" to leave for the suburbs. (6) Left in the wake of this exodus from cities, of course, were the remains of those cities' prior uses.

    In the decades following the post-war flight from the cities, scientific and popular acknowledgment of the environmental damages caused by frequently unregulated industry practices became mainstream. High-profile environmental disasters around the country showed the implications of land's industrial legacy for future users. (7) The growing awareness of human impacts on the environment led to the creation of a number of state and federal programs designed to prevent and remediate harm to land and water. Chief among these was the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), (8) which, along with state programs, provided a means for cleanup of hazardous wastes at former industrial sites. (9) Because CERCLA's strict liability scheme acted as a deterrent to development, however, it became the subject of frequent criticism and amendment. (10)

    The past several decades have seen Americans return to cities across the country. The renewed popularity of urban locations has created demand for previously-abandoned industrial sites. At the same time, criticism of the slowness of the CERCLA process to bring sites back into use has led to a shift in the ways in which contaminated sites are remediated. Instead of a full cleanup of hazardous materials, many remediation plans now call only for a partial cleanup combined with "institutional controls"--restrictions designed to limit land to uses consistent with the level of unremediated contamination at the site. (11) By restricting use, institutional controls are intended to ensure safety without necessitating a hill cleanup. (12) These controls, which are cheaper and provide a quicker means of reopening land to productive use than a full clean-up, have become a popular remediation tool. (13)

    Problematically, however, research regarding institutional controls suggests that they are prone to failure. (14) Many controls may fail because of improper compliance on the part of a landowner or user. (15) When that happens, any resulting harm is undesirable, but remedies against the responsible party are likely available to those affected by the noncompliance. An institutional control may also fail, however, to protect human safety even when met with perfect compliance, as not all institutional controls will operate exactly as intended. Those injured by institutional controls that fail under those circumstances have no clear means by which to be made whole for their loss. Under current law, challenging a selected institutional control may be possible only once implementation of that institutional control is "complete." (16) Federal remediation policies, hoping to remove disincentives to development, have incorporated liability waivers for those who comply with mandated levels of clean-up. (17) And prevailing on state tort actions in this area is likely very difficult. Consequently, the same policies designed to facilitate cleanup and entice redevelopment of urban areas appear to have shifted the burden of failed institutional controls onto those who come in to redevelop the sites, leaving them without recourse in the event of injury.

    Cities nationwide are currently experiencing a wave of regrowth. This growth, although welcome for its net environmental benefits, exerts a great deal of pressure on vacant land within a city. And while a sense of history may draw people to the urban environment, many of the buildings that now impart historic charm were formerly home to uses that caused serious environmental harms. Given the benefits of urban living, the potential that institutional controls have for helping to renew urban areas in an efficient manner cannot be ignored. There is a fundamental tension, however, between the interest in promoting quick remediation for purposes of ushering in urban renewal and the interest in ensuring the health of our cities for years to come. To the extent that people are living and working in less than fully remediated sites, the prospect of failure must be considered, and a remedy must be provided for any harm. Without those kinds of precautions, we lay the groundwork for a renewed flight from the cities if pollution from the past disrupts the new urban lives that people have made for themselves.

    1. City, Suburb, City

      The growth of the U.S. city in the nineteenth century occurred as part of a larger wave of political and economic change. As transportation improved, access to local and regional natural resources became readily available and easily exploited, paving the way for cities to become "centers of industry." (18) At the same time, social unrest in Europe spurred an influx of immigrants to the United States. (19) Drawn by "economic opportunity, cultural attractions, and the relatively greater degree of personal freedom available in the anonymous city compared with small town and rural areas," people began flocking to cities. (20) The pace of urbanization in the United States accelerated following the Civil War. The development of better steel production led to construction of a rail network, which in turn spurred both the establishment of new cities and the growth of others; by 1890, industrialization had created a truly national economy. (21) Immigrants, still arriving to the United States in large numbers, tended to settle in cities. Developments in agriculture and variable environmental conditions also led many to abandon the farming profession and seek employment in urban environments. (22) As a result, "[t]he old 'downtown' city in America reached its zenith by the end of the First World War." (23)

      Between 1929 and 1945, however, the dual impacts of the Great Depression and the Second World War resulted in a transformation of American cities. (24) That era was marked by a broad trend toward personal savings, allowing for a great expansion of the national economy once austerity measures ended. (25) Industries expanded into new arenas with the war effort, providing new business opportunities outside of traditional urban centers. (26) Geographic expansion was also made possible by the rapid increase in automobile ownership in the 1920s, which widened the sphere in which people could live and work. (27) And the end of the war was accompanied by federal stimulus programs that incentivized the move to suburban developments outside the urban core. (28) That migration was encouraged by federally subsidized housing, tax deductions for home ownership, transportation and infrastructure subsidies, and other federal policies. (29)

      Those federal programs incentivized middle-class families to purchase homes away from the city center and to maintain their suburban lifestyle by commuting. For many, the suburbs represented "a refuge... removed from the congestion, noise, pollution, multifamily residences, and high land prices typically found in the heart of the city." (30) And those who could afford to go, left. As "[t]he expansion of the suburbs drew the rich and middle-class out of the city," however, "the combination of slowed immigration and economic mobility resulted in increased vacancy rates in working-class districts," and "the number of residents in the urban core declined." (31) During that decline, "[t]he shops stayed in the city, but only for a while." (32) Similarly, while "jobs stayed downtown [for a time]... by the 1970s, many corporations were moving their offices" to the suburbs. (38) The flight of wealthy and middle-class residents created a "vicious cycle of decline for older and poorer urban neighborhoods, producing an increase in unemployment and crime, as well as lower property values." (34) The erosion of the tax base led to a decrease in services; this decrease further encouraged "more residents to leave, thus perpetuating the cycle of decline." (35) By the 1970s, the population of the suburbs surpassed that of the central cities. (36) As cities were perceived to have lost their competitive advantage, manufacturers departed, leaving "a changed urban landscape, both physically and functionally." (37) And...

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