Efficient PRP Search Strategies for Complex Contaminated Sites

My name is Jason Gart and I am a senior historian at History Associates, Inc., in Rockville, Maryland.
I work in the litigation and history service lines. Much of my time is spent conducting historical
research for use in complex litigation—this includes CERCLA Cost Recovery, Government Contract
Searches, Asbestos Cases, and PRP Searches.
I specialize in environmental matters that are a legacy of WWII and cold war mobilization.
My role this afternoon is to share (at a very high level) the approach and methodology that we at
History Associates use in undertaking PRP searches for private clients.
My assumption is that much of what I’m going to say will be familiar to you since the skillset and
analysis involved is not unique to the regulated or the regulators.
My goal is to communicate that firms like History Associates work with our clients to pursue efficient
and effective strategies to document a nexus between potentially responsible parties and the historic
contamination driving remediation at federally designated sites.
My expectation is that this presentation, paired with the presentations of my colleagues, will spark
some useful dialog that will benefit both the regulated and the regulators as we pursue what is
ultimately a complex research endeavor.
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Presented June 12, 2014
© History Associates Inc. All rights reserved.
9th National Training Conference on PRP Search Enhancement
Denver, Colorado

So, why invite a historian to the party? The main reason is that historical information resides in a vast
array of sources. Historians, unlike scholars in many other disciplines, are interested as much in old
materials as in current ones.
Historians have unsurpassed knowledge of the federal records system (especially the National
Archives and federal record centers) and have experience conducting research across the country
and around the world in a wide variety of archives, libraries, government offices, and private
collections. This is what we went to school for, seriously.
We decipher the arcane systems that are used to organize historical records, we can effectively
employ off-line and on-line resources, we conduct oral histories, and most importantly, we understand
context.
For historians, methodology is of paramount importance. Historical research should be
reproducible—that is, another researcher should be able to reproduce the data collection elements.
Historians are trained at finding the facts but also understand the importance of attribution,
provenance, and verification. We’ll talk about this a bit later.
Most importantly historians structure their research around questions.
For a PRP project these could be:
1. Where was the company located? How long was it located there?
2. What did the company manufacture over time? What raw materials were used?
3. What byproducts and waste products resulted from the company’s activities?
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Denver, Colorado

4. Was there a contaminant pathway from the company to the affected area?
5. What is the company’s corporate history?
6. Is the company or a successor financially viable?
Denver, Colorado
© History Associates Inc. All rights reserved. 2a

We all know that no two contaminated sites are the same, and that a wide range of factors—
environmental, historical, financial, and legal—influence our approach to a particular site.
To help frame my presentations this afternoon, I’ve very loosely defined a fictional case study to
provide some structure to hang our examples on and boundaries to focus our conversation. I’ve
designed this fictional case to:
• Control for the PRP group politics that often complicate the PRP identification process, at least
among the regulated and their consultants.
• Highlight the potential for PRP searches to inform other site characterization efforts by all parties.
• Include elements of the historic and geographic complexity that makes PRP searching challenging
and interesting.
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Denver, Colorado

The case study I will be using involves Coyote V. Acme.
This was litigated several years ago in U.S. District Court, Southwestern Division.
The client was a Mr. Coyote, a resident of Arizona and several contiguous states.
He brought suit against A-C-M-E corporation, and specifically, its mail-order subsidiary which was
located in a dense industrial center.
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Denver, Colorado

The issue involved the release of trichloroethylene (TCE), polychlorinated biphenyls (PCBs), and
heavy metals used during the manufacturing of explosives from circa 1940s through the 1970s.
We’re talking about the original release of these pollutants—not later reruns. . .
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These products were marketed and sold under several trade names.
You may be familiar with them. Or, may not?
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Given the complexity of this type of research, it is imperative that a PRP search begin with a well-
defined scope. If everyone is not clear about what the target is, we are much more likely to miss the
target.
First and foremost for us, the target is defined by client expectations:
• Legal: Where is the client in the legal process? What is their relative potential liability at the site?
Are they looking to form a PRP group and just want to identify the “A-list” invitees? How do they
see a PRP search contributing to their contextual understanding of the site or anticipated site
characterization efforts?
• Practical: Time and Money, Budget and Schedule. Is the client facing particular deadlines
(internal or external)? Almost always an iterative process, no one wants to spend too much on
this type of effort. The Goldilocks principal—always looking to spend what is “just right.”
• Depth & Breadth—Same principal applies: Since we are typically limited to public sources, we
always trying to capture the right depth of evidence on particular PRPs to support effective EPA
action to secure additional evidence from a targeted PRP. It is often important at the outset to
rule out specific types of businesses or industries as de minimus—to limit what is already a broad
range of potential parties present at the site over time.
Substantive Considerations—Bounding the investigation
• Contaminants driving, or likely to drive, the clean up—you don’t necessarily want to focus on
contaminants or parties that might ultimately fall out of the allocation. So, are we talking about
TCE or PCBs?
• Clarifying geographical boundaries—Do these make sense historically? Do we understand the
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Denver, Colorado

industrial geography in the 1930s? Is it collaborated by historic land ownership maps, U.S.
Geological Survey (USGS) topographical maps, Interstate Commerce Commission (ICC) valuation
maps?
• How do potential pathways cross or expand geographical boundaries? Natural--What about
hydrology? Tides? Man-made—Sewers, waste disposal, removal activities, transportation networks
(waterways).
• What about the historical or legal context will bound the timeframe of interest? Defining the timeline
for the rise and fall of industrial development. Are there legal reasons to stop and start the clock at
particular moments in time. Should the research go past the 1980s? Should it precede the 1890s?
What is the argument for both?
Denver, Colorado
© History Associates Inc. All rights reserved. 7

This is the ACME corporation site.
Early on in the process we used local/county parcel information overlaid with information pulled from
aerial sources (this could also be Sanborn Fire Insurance maps, plats, or city atlases). The goal is to
establish the extent of site transformation over time.
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Denver, Colorado

Not that historians need to be reminded of this, but when doing PRP searches we need to aim with
precision. Once we have the target, we only want to collect the evidence that will establish the nexus
between a particular party and significant releases of contamination to the site. Note that we are
particularly concerned with liability at first, but we always have allocation in view.
• Nature and Extent—ideally regulatory reporting, self reporting, or legal action that documents the
what (?) and how much (?) of the releases associated with a particular party. But often begins
with anecdotal, and isolated descriptions. May even be limited to process descriptions from which
specific releases must be inferred in the absence of other corroborating evidence.
• Timing of releases addresses the when (?) and for how long (?). How long will help bolster the
how much.
• Descriptions of the adverse impacts of contaminants now and in the past. A range from the
“quaintly” qualitative descriptions of the 19th century to the highly quantitative scientific
investigations of the late 20th century.
• Documenting pathways to demonstrate how the release occurred. Those natural and man made
systems from the previous slide.
• Is the party still around and can it contribute to the clean up? Evidence fitting all the previous
criteria may help with orphan share, but this evidence is critical to identifying a viable PRP. Here
again we struggle with finding the “just right” level of evidence. Secondary documentation such as
Moody’s directories, formal state corporate filings, or detailed reconstruction from a variety of
primary sources to make a court-ready claim of corporate succession.
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Denver, Colorado

Context is critical for ongoing site characterization, but also for developing an effective research
strategy.
• Historical map series can provide a wealth of detailed site-specific and even company-specific
information to highlight key changes on the land and trends in industrial development.
• Prior Studies—we all understand the issues of reliability associated with the historical context
sections of many environmental site characterization documents, but even these hold leads and
clues that can be verified from other sources. There are also historic studies—especially those
associated with the development of large-scale public waste disposal and processing systems
beginning in the early 20th century—that often prove invaluable for context as well as party-
specific evidence. These studies often look backward from the present, but that is okay.
• Local histories tend to provide useful qualitative overviews and the occasional party or site-
specific lead that can help guide further investigation and research. At the same time, however,
we face a challenge inherent with the variance of local records. PRP research is ultimately local
and regional in scope and application. Some localities have hygiene/pollution control regimes
dating to the Progressive period (1912-1924) and perhaps even back to the 1890s. Other cities or
regions didn’t monitor pollution until the 1960s.
• We also use general knowledge of environmental history and the evolution of government
regulation over business and the environment to help target the particular types of records that will
likely exist for particular time periods. For example, some of the earliest stream pollution
documentation in some states is found in the fish and wildlife records, not the public health files.
So, some key starting points may include:
• Review of client materials
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Denver, Colorado

• Land ownership maps and atlases, Sanborns
• Industrial and manufacturing directories
• Historical newspapers
• Contextual information from general histories (the local history sources)
• JSTOR and scholarly articles (PhD dissertations; MA theses)
• Industrial/manufacturing histories (that is, profiles of industry in the local area)
• Criss-cross street directories
• US Army Corps of Engineers Records (dredging and filling records)
• State and local records (Dept. of Health inspections, labor and industrial hygiene records, sewerage
studies and permits, tideland permit files, other state environmental files)
Denver, Colorado
© History Associates Inc. All rights reserved. 10a

Armed with a tight scope, a clear understanding of the evidence we are seeking, and well-designed
research plan, we are ready to collect relevant evidence.
• Looking at public sources where we are focused on the documentary intersection between
government and business that may contribute either direct or indirect evidence to support the PRP
nexus. As you know sometimes public records are not so public, and there are times when EPA
might be helpful in coordinating access between private parties like our clients and other federal,
state, or local governments.
• While it is easy for historians to review city directories and newspapers, these broad-based
sources of information may at times prove very inefficient at targeting the relatively few significant
and viable PRPs that are likely to result from a “just right” search. On the other hand, in-depth tax
and legal records may be particularly useful sources to flesh out the story on promising PRPs
either in terms of documenting their releases or establishing corporate succession and viability.
• Documenting pathways is critical to establish a physical connection between historic site
operations and existing contamination. Sometimes a look back can demonstrate that a suspected
pathway was not actually extant during the relevant time period. Notices of violation and industrial
wastes surveys associated with specific pathways (both natural and man-made) are among the
best evidence we find, but we often encounter access issues.
• Landownership records are often useful, but be careful trusting title searchers and other
researchers who aren’t looking at these records as sources of environmental history.
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Denver, Colorado

Obviously, you want to follow the leads.
Historical research is historical detective work.
Think through your methodology and work to compile lists of PRP names (with historical/current
addresses, if available) from your sources. You’ll want to include as much chronological information
as you can and include name changes and variations over time.
Re-engage the materials as needed.
Expand the scope to other documents including corporate records (Moody’s Investment Manuals,
etc.).
A good question to ask: Who are the predecessor state and local agencies that were the
environmental regulators during the 1930s and 1940s? Where are their files located?
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Denver, Colorado

Presentation is first and foremost about the evidence—authenticating and organizing it.
• Too often authentication is not considered until you are about to go to court—often years or even
decades after the documents were first selected. Documenting your research methodology (what
you reviewed and why and what you found and collected) and capturing the link between a
specific document and the file location of the original, not only supports authentication, but also
helps avoid duplication of effort over the course of a long, drawn-out case.
• It also makes sense to deliver evidence in an organized fashion. In cases where you have virtual
“mountains” digitized historical documents it is often short-sighted to rely just on OCR. We have
found the most cost effective way is to provide a simple intuitive arrangement based first on the
source of the document and thereunder chronologically. This provides an objective arrangement
and context for each document both in terms of its relationship to other documents collected from
the same source and its relationship to those documents in time.
• What is the client expecting in way of presentation. Do they want dossiers for each entity or
something more, perhaps formal synthesis in factsheets?
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Denver, Colorado

Think about ways to tell a complex story.
This is vital when you want to document viable successor(s).
A corporate genealogy is key for the site. It helps you identify viable corporate successors as well as
clarify how specific companies and plants were acquired (whether through stock acquisition,
corporate merger, asset sale, etc.)
The genealogy often incorporates information from:
• State incorporation records
• Corporate annual reports and SEC filings
• Historical newspapers
• Industry-specific publications
• Business directories
• Local tax records
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Denver, Colorado

Presentation is also about synthesis—compiling the evidence into a well-documented story that
demonstrates the nexus between a particular party and significant releases of contamination to the
site.
Such a synthesis (or site history) is often incomplete, due to the inherently incomplete historical
record and the lack of access to corporate records.
We operate in a world where the data is not perfect. This is okay—embrace it!
Perhaps you would be among the best judges of what constitutes an effective presentation.
I look forward to hearing your thoughts on this topic.
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Denver, Colorado

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