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Historical Research in ContaminationMatters, Presented on 3/23/2012(c) History Associates Inc.www.historyassociates.com   ...
Historical Research in ContaminationMatters, Presented on 3/23/2012          My take-home message is contained within this...
Historical Research in ContaminationMatters, Presented on 3/23/2012          A couple of years ago, a client and I were ta...
Historical Research in ContaminationMatters, Presented on 3/23/2012          When attorneys hire professional historians o...
Historical Research in ContaminationMatters, Presented on 3/23/2012          In identifying PRPs, especially for complex s...
Historical Research in ContaminationMatters, Presented on 3/23/2012          The next source I want to discuss are industr...
Historical Research in ContaminationMatters, Presented on 3/23/2012          A final source that I want to touch upon that...
Historical Research in ContaminationMatters, Presented on 3/23/2012  After asking environmental experts to help to identif...
Historical Research in ContaminationMatters, Presented on 3/23/2012          What if you suspect that the federal governme...
Historical Research in ContaminationMatters, Presented on 3/23/2012          Of course, the federal government can also be...
Historical Research in ContaminationMatters, Presented on 3/23/2012          While the National Archives is perhaps best k...
Historical Research in ContaminationMatters, Presented on 3/23/2012          Because of the volume of its records collecti...
Historical Research in ContaminationMatters, Presented on 3/23/2012          Federal records of use on soil and groundwate...
Historical Research in ContaminationMatters, Presented on 3/23/2012          My final slides show some of the goodies that...
Historical Research in ContaminationMatters, Presented on 3/23/2012          Sometimes the old adage is true about a pictu...
Historical Research in ContaminationMatters, Presented on 3/23/2012          Lastly, I want to touch upon the value of his...
Historical Research in ContaminationMatters, Presented on 3/23/2012          In conclusion, I would like to recommend that...
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The Value of Historical Research in Soil and Groundwater Contamination Matters

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This presentation provides a historian’s perspective on the applicability of historical research in soil and groundwater contamination matters and argues that attorneys should consider using professional historians in such matters. It then summarizes some key resources and records collections that historians often consult when researching soil and groundwater contamination matters, with particular attention given to records that can be found at the National Archives and at state and local records repositories.

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  • My take-home message is contained within this slide: please remember that historians and other outside experts such as environmental scientists can be very valuable members of your legal team…especially in those cases where you feel like the man in this slide.While my presentation focuses on the value that historians can bring to your legal team, what I say is also applicable to other experts, who can also bring subject-level expertise and experience to your legal cases.Today, I will discuss three general topics: (1) Why use historians on soil and groundwater contamination matters? (2) How can historians help to identify and characterize PRPs in such matters? and, (3) What sources do historians use to identify and characterize PRPs?In short, I want to discuss how historians can help you to find the proverbial needles in a haystack.
  • A couple of years ago, a client and I were talking about this topic and he likened what historians do to turning over rocks in a quarry. As an attorney, the client knew (or at least hoped) that key records are out there somewhere, buried under one of those rocks in that quarry. But, while he could probably ascertain the relevance of a document if he happened to find it while randomly turning over rocks, the value that historians bring is that we know (or can figure out) which rocks to turn over.Put another way, professional historians have training and experience in thinking analytically about the various “moving parts” of history—that is, we have the ability to identify not just what happened at a site but also the ability to identify the historical private or public entities that likely generated and maintained records documenting past events of interest. As importantly, we also know where and how to find these records today.In the context of soil and groundwater contamination matters, what historians can add to your legal teams is summarized on this slide. In brief, we can help you to identify and characterize PRPs to site contamination. With this information, attorneys can be in a more informed position to negotiate with other PRPs or regulatory agencies or to better allocate or apportion site cleanup costs.
  • When attorneys hire professional historians on soil or groundwater contamination matters, one of the first things we are typically asked to do is to find other PRPs who can join in the fun of sharing cleanup costs. Ideally, we do so in collaboration with environmental experts who are also working on the site. For example, if soil sampling yields a high presence of coal tar and PAHs, historians can use this information to target our research for any historical industries that generated these byproducts, such as wood preservers or manufactured gas plants.This slide lists some of the readily accessible sources that historians typically consult in identifying PRPs in soil and groundwater contamination matters.
  • The next source I want to discuss are industrial directories. During the mid-20th century, many states published these directories (the ones on this slide are from Alabama and Ohio). The directories provide a pretty comprehensive list of all manufacturing companies located in each state and the products they manufactured. The directories are normally organized by county or city and are cross-referenced by industry, making it easy to use them to get a list of companies and industries that were in a given area at a given time. The challenge, though, can sometimes be finding complete runs of these directories. For example, the Alabama State Library does not have as complete a collection of Industrial Alabama as does the Library of Congress. Again, this is where professional historians can help to identify which of those rocks in that quarry to turn over.
  • After asking environmental experts to help to identify the universe of PRPs to a soil or groundwater contamination matter, attorneys should next consider asking their outside experts to help to characterize each PRP. This involves researching each PRP’s historical “time on risk” and current corporate viability. In other words, historians attempt to determine for each PRP: How long was it at the site? Is it (or a viable successor) still in business today? What did the PRP do at the site? What were its manufacturing processes? What raw materials did it use? What were its products and by-products? How did the PRP dispose of its waste?  In researching these questions, historians can turn to any number of sources, depending on the type of PRP and the nature of the site contamination. Corporate HistoryFor example, attorneys often ask historians to research the corporate history of PRPs. At complex sites where site operations date back decades, this research often involves tracing a web of corporate mergers and acquisitions to determine if there is a viable present-day successor to a now-defunct company. Historians search for corporate history information in a variety of sources, including those listed on this slide. The most obvious and useful source is corporate filings, such as 10-k official company reports to the SEC and company annual reports to shareholders. This information can be found within SEC records held by the SEC or National Archives, within state incorporation files, or at libraries or archives across the country. As necessary, historians also look for corporate information within business directories such as Moody’s or trade literature sources. Operational HistoryA trickier question to research, though, is the operational history of companies. When attorneys ask historians to do this, they typically want answers to questions such as: What did the PRP do at the site? What were its manufacturing processes? What raw materials did it use? How did it get these raw materials? What were its products and by-products? Who were the major customers? How did the PRP dispose of its waste?  This slide lists some of the places historians look for this information; of course, the specific nature of the PRP will determine where historians will research. For example, if researching an old shipyard, historians may look at historical federal records from the Navy, Maritime Commission, Shipping Board, or Emergency Fleet Corporation, as well as state and local records. 
  • What if you suspect that the federal government may be a PRP at an industrial site under CERCLA, either as a historical owner, operator, or arranger? With apologies to Ken and other government attorneys here today, this is a somewhat enviable situation (at least for historians), simply because of the shear volume of surviving federal government records and the concomitant likelihood that useful records can be found.In researching whether the government could be a historical owner of an industrial site, historians look for information concerning whether the government actually owned:Real property ( either encompassing an entire site or a portion of it)Manufacturing facilities (entire buildings or individual production units)Equipment and Tools (particularly those directly linked to production processes)Title to raw materials, products, by-products, etc.In doing so, historians typically review federal government records, often at the National Archives and other federal records repositories. For example, within records at the National Archives, you can find lists of World War II-era “GOCO” (government owned-, contractor-operated) facilities. You can also find GSA-generated lists of real property owned and leased by the federal government between 1953 and 1977…and that’s barely the tip of the iceberg of what’s available.
  • Of course, the federal government can also be liable under CERCLA if it was a historical operator of a facility. Historically, this type of relationship is best seen during wartime (especially World War II) when the government assumed control of much of America’s economy as part of our industrial mobilization efforts. In searching for records pertaining to the government’s “operational” control of private facilities during wartime, historians review sources like those listed on this slide for information concerning the government’s control of: Input Determinations at an industrial facility, meaning control or management of a plant’s: Facilities, Equipment, Raw materials, Labor, and Intellectual property Output Determinationsat an industrial facility, meaning control or management of a company’s: Products, Production levels and schedules, Price, Customers (that is, who should receive the products, how much should they receive, and the means of transport), Waste handling/disposal practices As with so many records of interest on soil and groundwater contamination matters, many of these sources can be found with federal records collections.  I now want to turn to a very brief overview of the National Archives and Library of Congress and the type of records that can be found at these repositories. In doing so, I hope to convey the complexities of conducting research at these repositories and suggest why attorneys should consider adding professional historians to their legal teams rather than doing this research on their own.
  • Lastly, I want to touch upon the value of historical aerial photographs. Beginning in the 1930s, federal and state agencies and private companies blanketed the United States with aerial reconnaissance flights. These aerial photographs can provide valuable clues about everything from the changing footprint of sites to the location of sewer outflows and waste piles. In addition to well-known federal government collections of aerials (such as the National Archives, U.S. Geological Survey, and U.S. Department of Agriculture), there are numerous public and private collections of aerials. And, while in some cases just ordering aerials via EDR or other on-line sources is sufficient, in many cases it is useful to consult as many sources as possible, as different repositories have different collections of aerials.For example, the two aerials in this slide were collected from two different repositories and show a New Jersey railroad freight terminal during the mid-20thcentury. Of interest in these photographs, is the absence of one of the piers at the complex between the top photograph (1940) and the second photograph (1951).
  • In conclusion, I would like to recommend that attorneys consider using historians and other outside experts on your legal teams.As with environmental scientists and other experts, professional historians can use the skills listed on this slide to bring significant value to soil and groundwater contamination matters, as we help attorneys to:Identify and Characterize PRPs to Site ContaminationNegotiate More Equitable Allocations for Site Cleanup CostsInform Negotiating Strategies with PRPs and Regulatory Agencies
  • Transcript of "The Value of Historical Research in Soil and Groundwater Contamination Matters"

    1. 1. Historical Research in ContaminationMatters, Presented on 3/23/2012(c) History Associates Inc.www.historyassociates.com 1
    2. 2. Historical Research in ContaminationMatters, Presented on 3/23/2012 My take-home message is contained within this slide: please remember that historians and other outside experts such as environmental scientists can be very valuable members of your legal team…especially in those cases where you feel like the man in this slide. While my presentation focuses on the value that historians can bring to your legal team, what I say is also applicable to other experts, who can also bring subject-level expertise and experience to your legal cases. Today, I will discuss three general topics: (1) Why use historians on soil and groundwater contamination matters? (2) How can historians help to identify and characterize PRPs in such matters? and, (3) What sources do historians use to identify and characterize PRPs? In short, I want to discuss how historians can help you to find the proverbial needles in a haystack.(c) History Associates Inc.www.historyassociates.com 2
    3. 3. Historical Research in ContaminationMatters, Presented on 3/23/2012 A couple of years ago, a client and I were talking about this topic and he likened what historians do to turning over rocks in a quarry. As an attorney, the client knew (or at least hoped) that key records are out there somewhere, buried under one of those rocks in that quarry. But, while he could probably ascertain the relevance of a document if he happened to find it while randomly turning over rocks, the value that historians bring is that we know (or can figure out) which rocks to turn over. Put another way, professional historians have training and experience in thinking analytically about the various “moving parts” of history—that is, we have the ability to identify not just what happened at a site but also the ability to identify the historical private or public entities that likely generated and maintained records documenting past events of interest. As importantly, we also know where and how to find these records today. In the context of soil and groundwater contamination matters, what historians can add to your legal teams is summarized on this slide. In brief, we can help you to identify and characterize PRPs to site contamination. With this information, attorneys can be in a more informed position to negotiate with other PRPs or regulatory agencies or to better allocate or apportion site cleanup costs.(c) History Associates Inc.www.historyassociates.com 3
    4. 4. Historical Research in ContaminationMatters, Presented on 3/23/2012 When attorneys hire professional historians on soil or groundwater contamination matters, one of the first things we are typically asked to do is to find other PRPs who can join in the fun of sharing cleanup costs. Ideally, we do so in collaboration with environmental experts who are also working on the site. For example, if soil sampling yields a high presence of coal tar and PAHs, historians can use this information to target our research for any historical industries that generated these byproducts, such as wood preservers or manufactured gas plants. This slide lists some of the readily accessible sources that historians typically consult in identifying PRPs in soil and groundwater contamination matters.(c) History Associates Inc.www.historyassociates.com 4
    5. 5. Historical Research in ContaminationMatters, Presented on 3/23/2012 In identifying PRPs, especially for complex sites with multiple PRPs operating over decades, historians start where most environmental attorneys would probably start…by consulting available Sanborn fire insurance maps of the site. I’m sure everyone is familiar with EDR’s collection of Sanborn fire insurance maps and the ability to order them from your desktop. These maps are great sources to identify historical owners of industrial sites. However, historians do not confine our cartographic research solely to Sanborns, as city and county atlases, tax maps, real estate plat maps, and other cartographic sources can all be used to identify PRPs. Depending on the location of the site, historians search for these maps in various places, including the National Archives, Library of Congress, state and local libraries and archives, as well as local government agencies such as the Planning Department, Surveyor’s Office, or Public Works Department. The map in this slide is a detail of a World War II map of a California airport that I found at the National Archives. It depicts the presence of a previously unknown (at least to the attorney I was working with) U.S. Army Dumping Station.(c) History Associates Inc.www.historyassociates.com 5
    6. 6. Historical Research in ContaminationMatters, Presented on 3/23/2012 The next source I want to discuss are industrial directories. During the mid-20th century, many states published these directories (the ones on this slide are from Alabama and Ohio). The directories provide a pretty comprehensive list of all manufacturing companies located in each state and the products they manufactured. The directories are normally organized by county or city and are cross-referenced by industry, making it easy to use them to get a list of companies and industries that were in a given area at a given time. The challenge, though, can sometimes be finding complete runs of these directories. For example, the Alabama State Library does not have as complete a collection of Industrial Alabama as does the Library of Congress. Again, this is where professional historians can help to identify which of those rocks in that quarry to turn over.(c) History Associates Inc.www.historyassociates.com 6
    7. 7. Historical Research in ContaminationMatters, Presented on 3/23/2012 A final source that I want to touch upon that can be used to identify PRPs is historical newspaper articles, which can contain information on corporate transactions or descriptions of industrial plants and processes. The challenge with such research, of course, is that, while the historical issues of many national and major regional newspapers have been digitized, most local newspapers are not full-text searchable. And, it is most often the local newspapers that provide the most useful information about local companies. When faced with such situations, historians know to use other methods to access these old newspapers, including review of newspaper clippings files, which are typically found at local libraries or historical societies and were created by the yeoman efforts of local librarians who literally clipped articles out of newspapers and organized them into subject-specific vertical files. I found the local newspaper article shown in this slide in just such a “clippings file.” It turned out to be very useful in a past case I worked on because it alerted the client to the existence of a previously unknown federal court case from the 1970s relating to the site we were researching. This turned out to be a useful lead, as I was able to use this information to obtain a copy of the historical case file from the regional National Archives facility.(c) History Associates Inc.www.historyassociates.com 7
    8. 8. Historical Research in ContaminationMatters, Presented on 3/23/2012 After asking environmental experts to help to identify the universe of PRPs to a soil or groundwater contamination matter, attorneys should next consider asking their outside experts to help to characterize each PRP. This involves researching each PRP’s historical “time on risk” and current corporate viability. In other words, historians attempt to determine for each PRP: How long was it at the site? Is it (or a viable successor) still in business today? What did the PRP do at the site? What were its manufacturing processes? What raw materials did it use? What were its products and by-products? How did the PRP dispose of its waste? In researching these questions, historians can turn to any number of sources, depending on the type of PRP and the nature of the site contamination. Corporate History For example, attorneys often ask historians to research the corporate history of PRPs. At complex sites where site operations date back decades, this research often involves tracing a web of corporate mergers and acquisitions to determine if there is a viable present-day successor to a now-defunct company. Historians search for corporate history information in a variety of sources, including those listed on this slide. The most obvious and useful source is corporate filings, such as 10-k official company reports to the SEC and company annual reports to shareholders. This information can be found within SEC records held by the SEC or National Archives, within state incorporation files, or at libraries or archives across the country. As necessary, historians also look for corporate information within business directories such as Moody’s or trade literature sources. Operational History A trickier question to research, though, is the operational history of companies. When attorneys ask historians to do this, they typically want answers to questions such as: What did the PRP do at the site? What were its manufacturing processes? What raw materials did it use? How did it get these raw materials? What were its products and by- products? Who were the major customers? How did the PRP dispose of its waste? This slide lists some of the places historians look for this information; of course, the specific nature of the PRP will determine where historians will research. For example, if researching an old shipyard, historians may look at historical federal records from the Navy, Maritime Commission, Shipping Board, or Emergency Fleet Corporation, as well as state and local records.(c) History Associates Inc.www.historyassociates.com 8
    9. 9. Historical Research in ContaminationMatters, Presented on 3/23/2012 What if you suspect that the federal government may be a PRP at an industrial site under CERCLA, either as a historical owner, operator, or arranger? With apologies to Ken and other government attorneys here today, this is a somewhat enviable situation (at least for historians), simply because of the shear volume of surviving federal government records and the concomitant likelihood that useful records can be found. In researching whether the government could be a historical owner of an industrial site, historians look for information concerning whether the government actually owned: • Real property ( either encompassing an entire site or a portion of it) • Manufacturing facilities (entire buildings or individual production units) • Equipment and Tools (particularly those directly linked to production processes) • Title to raw materials, products, by-products, etc. In doing so, historians typically review federal government records, often at the National Archives and other federal records repositories. For example, within records at the National Archives, you can find lists of World War II-era “GOCO” (government owned-, contractor-operated) facilities. You can also find GSA-generated lists of real property owned and leased by the federal government between 1953 and 1977…and that’s barely the tip of the iceberg of what’s available.(c) History Associates Inc.www.historyassociates.com 9
    10. 10. Historical Research in ContaminationMatters, Presented on 3/23/2012 Of course, the federal government can also be liable under CERCLA if it was a historical operator of a facility. Historically, this type of relationship is best seen during wartime (especially World War II) when the government assumed control of much of America’s economy as part of our industrial mobilization efforts. In searching for records pertaining to the government’s “operational” control of private facilities during wartime, historians review sources like those listed on this slide for information concerning the government’s control of: Input Determinations at an industrial facility, meaning control or management of a plant’s: Facilities, Equipment, Raw materials, Labor, and Intellectual property Output Determinations at an industrial facility, meaning control or management of a company’s: Products, Production levels and schedules, Price, Customers (that is, who should receive the products, how much should they receive, and the means of transport), Waste handling/disposal practices As with so many records of interest on soil and groundwater contamination matters, many of these sources can be found with federal records collections. I now want to turn to a very brief overview of the National Archives and Library of Congress and the type of records that can be found at these repositories. In doing so, I hope to convey the complexities of conducting research at these repositories and suggest why attorneys should consider adding professional historians to their legal teams rather than doing this research on their own.(c) History Associates Inc.www.historyassociates.com 10
    11. 11. Historical Research in ContaminationMatters, Presented on 3/23/2012 While the National Archives is perhaps best known for preserving the so-called “Charters of Freedom” (the Declaration of Independence, the Constitution, and the Bill of Rights) in the Archives’ Rotunda in Washington, DC, it is also charged with preserving and making available to the public federal government records of permanent historical value. Interestingly, of all the records created or maintained by the federal government, less than 5% are deemed to be of “permanent historical value” and are preserved in the National Archives. Yet, as the National Archives likes to boast, laid side to side, pages in the National Archives’ custody would still circle the Earth over 57 times.(c) History Associates Inc.www.historyassociates.com 11
    12. 12. Historical Research in ContaminationMatters, Presented on 3/23/2012 Because of the volume of its records collections and the vastly different ways in which each agency historically organized its records, conducting research at in the National Archives is unlike conducting research at any other repository. First, a couple of thoughts on what the National Archives does not have. • Electronic index to all its records • Card catalog • Open shelving where you can browse the stacks for useful records Instead, the National Archives organizes its records into more than 570 record groups, each of which comprises the records of a major government entity, usually a bureau or an independent agency. Each record group can contain thousands of pages of documents. The National Archives employs consulting archivists who can help you to find records, but they do not do research for you. This is where professional historians can help. I’m not saying that professional historians are the only people who can effectively conduct research at the National Archives…but historians are more likely to find a broader array of relevant records, quicker, and, in the long run, cheaper, than non-historians. This is especially true in complex soil and groundwater matters with multiple PRPs and contaminants of interest.(c) History Associates Inc.www.historyassociates.com 12
    13. 13. Historical Research in ContaminationMatters, Presented on 3/23/2012 Federal records of use on soil and groundwater contamination matters, though, are not just confined to the National Archives system. In fact, federal libraries, including the de facto nation’s library, the Library of Congress in Washington, DC, are another invaluable resource. For its part, the Library of Congress contains an unparalleled collection of historical maps, including Sanborn maps, historical U.S. Geological Survey quadrangle maps, U.S. Coast & Geodetic Survey coastline maps, and city maps and atlases. The library also contains one of the world’s biggest collection of historical trade and scientific literature. In other words, the Library of Congress often maintains copies of those obscure industrial journals that can provide critical evidence in a variety of legal matters. Most federal agencies also have their own publicly accessible archives, libraries, and/or historical offices. Depending on the nature of the site, then, historians may recommend conducting research at one of these libraries, including (but certainly not limited to) the Air Force Historical Research Agency; Department of Interior Library; National Agricultural Library; or, U.S. Geological Survey Library.(c) History Associates Inc.www.historyassociates.com 13
    14. 14. Historical Research in ContaminationMatters, Presented on 3/23/2012 My final slides show some of the goodies that are available through diligent research. Or, to continue the metaphor from the beginning of my presentation, some of the needles in the haystack, that historians can find. First and foremost, on many matters historians can uncover a veritable cornucopia of documents that can help attorneys better understand contaminated sites. As just one example, this is a picture of a World War II-era government sale brochure for the government-owned portion of a beryllium plant. Our client in this matter used this document as one of their central points in apportionment negotiations with DOJ for government contribution under CERCLA for cleanup activities at his site.(c) History Associates Inc.www.historyassociates.com 14
    15. 15. Historical Research in ContaminationMatters, Presented on 3/23/2012 Sometimes the old adage is true about a picture being worth a thousand words. When researching the historical activities at former industrial sites, photographs can be an invaluable resource. These photographs can be found in many places, including the National Archives and state and local historical societies and archives. For example, from 1939-1941 the New York City Department of Taxes photographed nearly every building in the 5 boroughs for tax assessment purposes. This slide shows one such photograph from Queens. A similar collection of photographs (also from the late 1930s) survives at the Washington State Archives for buildings that stood in King County (Seattle).(c) History Associates Inc.www.historyassociates.com 15
    16. 16. Historical Research in ContaminationMatters, Presented on 3/23/2012 Lastly, I want to touch upon the value of historical aerial photographs. Beginning in the 1930s, federal and state agencies and private companies blanketed the United States with aerial reconnaissance flights. These aerial photographs can provide valuable clues about everything from the changing footprint of sites to the location of sewer outflows and waste piles. In addition to well-known federal government collections of aerials (such as the National Archives, U.S. Geological Survey, and U.S. Department of Agriculture), there are numerous public and private collections of aerials. And, while in some cases just ordering aerials via EDR or other on-line sources is sufficient, in many cases it is useful to consult as many sources as possible, as different repositories have different collections of aerials. For example, the two aerials in this slide were collected from two different repositories and show a New Jersey railroad freight terminal during the mid-20th century. Of interest in these photographs, is the absence of one of the piers at the complex between the top photograph (1940) and the second photograph (1951).(c) History Associates Inc.www.historyassociates.com 16
    17. 17. Historical Research in ContaminationMatters, Presented on 3/23/2012 In conclusion, I would like to recommend that attorneys consider using historians and other outside experts on your legal teams. As with environmental scientists and other experts, professional historians can use the skills listed on this slide to bring significant value to soil and groundwater contamination matters, as we help attorneys to: • Identify and Characterize PRPs to Site Contamination • Negotiate More Equitable Allocations for Site Cleanup Costs • Inform Negotiating Strategies with PRPs and Regulatory Agencies(c) History Associates Inc.www.historyassociates.com 17

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