CERCLA, Institutional Controls, and the Legacy of Urban Industrial Use
Fox, Sarah, Environmental Law
I. 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
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. …