Using Historical Research to Make Your Case: A Survey of Key Federal Records

A Survey of Key Federal Records Presented on 9/30/10

Using Historical Research to Make
Your Case: A Survey of Key Federal
Records

The ABA Section of Environment, Energy, and
Resources Law Summit

September 30, 2010

Steve Swisdak
History Associates Incorporated
Deputy Director of Litigation Research
(301) 279-9697
sswisdak@historyassociates.com

History Associates is a historical consulting firm headquartered in Washington, DC.
As part of our array of historical services, we conduct expert research to help
environmental practitioners in a variety of matters.

This presentation focuses on some federal government records of use to
environmental practitioners. Please know, though, that this presentation is the tip of
the proverbial iceberg of potentially useful federal records, but hopefully it will
provide you with a sense of how useful federal records can be in a variety of
matters.

Of course, there are also numerous state and local records that can also be
useful…but that’s another presentation, perhaps at next year’s meeting in
Indianapolis.

(C) 2010 History Associates, Inc.,
www.historyassociates.com 1


Presentation Outline

Federal Records Pipeline
National Archives
Federal Libraries
Electronic Databases
Effective FOIA Requests

2

In today’s presentation, I will provide an overview of the federal records pipeline,
explaining how records make it to the National Archives.

I will then touch briefly on some of the types of records that can be found in various
federal records repositories, including the National Archives, various federal libraries
(including the Library of Congress), and through electronic databases.

The presentation will conclude with some thoughts on how to craft effective
Freedom of Information Act requests.



Historical Research Can Provide a
Legal Paddle

3

My take-home message is contained within this slide. If you take away nothing else
from this presentation, please remember that many legal matters can benefit from
effective historical research, especially cases with a historical dimension where
historical research can provide one of these paddles for your clients.

And remember that “historical dimensions” of cases begin yesterday and can
stretch back for years, decades, and even centuries.



Select Legal Drivers

CERCLA
PRP Searches
NRD Cost Recovery and Sharing
Toxic Torts/Product Liability Matters
Failure-to-Warn Cases
Common Knowledge/
Statute of Limitations
All Appropriate Inquiries for Brownfields
Historical Land Use
Historical Standards and Practices
4

Now, I am not a lawyer…nor did I stay at a Holiday Inn Express last night…so I will
not offer any legal advice in this presentation.

However, I do want to say that there are many legal drivers, including the ones
listed on this slide, that can call for historical research into federal government
records.



Key Federal Records Questions

Who created records?
What records were created?
What records were kept?
Where are the records now?

5

Agency Context
What federal agency historically kept records of interest. Who is the
successor to that agency? Where are that agency’s records?

What records were created? As importantly, what records were kept?
Sometimes, though, it can useful to know what records the federal
government created, but, due to their records retention schedule,
subsequently destroyed.

Where are the records now?

Research Plan
With this information, you can formulate an effective research plan to target records
of interest to you. This is an important step, as time spent creating a research plan
will often save you time later on



Federal Records Pipeline

Federal Agency

Federal
Records Centers

National Archives

6

Of all the records created or maintained by the federal government, only 5% of them
are deemed to be of “permanent historical value” and are preserved in the National
Archives. This slide illustrates how records created or received by the federal
government flow from, say, a remotely located federal agency file cabinet or
computer to a National Archives facility.

Federal Agency
Access is typically through FOIA request
FRC
Non-current, inactive, or permanent records. Most will be destroyed.
Agency-controlled records. Typically need FOIA request to access
Records transmittal forms are publicly accessible, which can provide
descriptions of the contents of a series of records, including box and folder
titles. As we will see, this information is critical to crafting effective FOIA
requests.
National Archives
Records of permanent historical value
Publicly accessible records, though the Archives also maintains classified
records
FOIA requests to NARA are rarely productive, as you must do research
yourself



National Archives

14 facilities and 13 presidential libraries
9 billion pages of textual records
20 million photographs
7 million maps, charts, and architectural
drawings

7

While the National Archives is perhaps best known for preserving the so-called
“Charters of Freedom” (i.e., the Declaration of Independence, the Constitution, and
the Bill of Rights) in the Archives’ Rotunda in Washington, DC, it is also tasked with
preserving and making available to the public federal government records of
permanent historical value.

Currently, this amounts to

9 billion pages of textual records
20 million photographs
7 million maps, charts, and architectural drawings

As the National Archives likes to boast, laid side to side, pages in the National
Archives holdings would circle the Earth over 57 times.

How, then, to access these records, especially if (as this picture suggests), most
boxes look the same?



Research at National Archives Facilities

Limited electronic searching
No library-style card catalog
Not open shelving
570+ record groups
Finding aids of all kinds
Unique file classification schemes

8

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.
Card Catalog
Electronic index to all its records
Open shelving

Instead, the National Archives organizes its records into 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. That is where trained researchers and
historians can help.

I’m not saying that trained historians/researchers are the only people who can
effectively conduct research at the National Archives…but we are more likely to find
a broader array of relevant records, quicker, than a research neophyte.



National Archives Fun Finds

9

Research at the National Archives, though, does not just yield dry and tedious
records of interest only to historians and attorneys.

Sometimes, you come across documents that provide fascinating insights into
historical events.

Sometimes you find odd objects, like my colleague who once found a piece of
unexploded ordnance in an archival box. Luckily, it was not live.

And sometimes, you find humorous documents like this 1944 manual from the
Office of Strategic Services (a predecessor to the CIA) on simple sabotage
techniques for use in Axis countries.

I have excerpted the section about how to effectively sabotage productivity at
organizations and conferences.



National Archives Fun Finds

10

Finally, because History Associates is based in Washington, DC, this 1943 letter
from the Office of the Petroleum Coordinator for War is particularly instructive.



National Archives-Textual Documents

11

Within the National Archives’ 9 billion pages of textual documents, researchers can
find textual records relating to a remarkable variety of topics. For example, I once
worked on a case where a law firm needed to collect copies of annual reports and
other operational statistics from the 1950s for a long-since-defunct bus company.

Because I knew that the Interstate Commerce Commission historically regulated
motor carriers, I was able to locate a run of an obscure quarterly ICC publication
that contained precisely the information needed by the client. Again, knowing
agency context was essential to successfully finding these records.

Of perhaps more relevance to this audience, within the National Archives,
researchers can find documents of particular use in CERCLA settings, especially
cases in which companies attempt to establish the federal government’s liability as
a historical owner, operator, or arranger at a site.

In such contexts, documents such as this one, which indicate the federal
government owned industrial facilities during the war through its Defense Plant
Corporation (which, despite its name was a government agency), are immensely
useful.

We have prepared a brief guide to such research, which will be available after this
presentation.



National Archives-Government Manuals

12

The National Archives (and other federal records repositories) also maintain copies
of various government manuals, specifications, directives, and other issuances,
such as this 1954 Air Force publication concerning the health hazards of various
cleaning solvents (including trichloroethylene).

These government directives can be useful in a variety of matters, including product
liability issues, establishing common knowledge, and countering failure-to-warn
claims.

Again, we have prepared a brief guide to such research, which will be available after
this presentation.



National Archives-Aerial Photographs

13

The National Archives also maintains a large collection of historical aerial
photographs, especially of former military installations and industrial sites.

This is a photograph of a relatively small World War II-era Gulf Coast shipyard.



National Archives-Still Photographs

14

The National Archives also maintains a large collection of “still photographs.”

This is a picture of a pier complex in New Jersey. Of note, the case on which I
collected this photograph involved a state land use matter involving a New Jersey
law concerning historical improvements to tideland portions of riparian lands.

In other words, there was no obvious connection to historical federal
records…nevertheless, research at the National Archives yielded dozens of relevant
photographs, maps, and documents.



National Archives-Maps

15

Sometimes, a picture…or in this case a map….really does say a thousand words.

This map of a World War II-era Army airfield clearly shows where the Army
historically dumped its waste during the 1940s.

Needless to say, our client was very interested in this map.



Library of Congress

142+ million items
Geography & Map Reading Room
Newspaper & Periodical Reading Room
Trade and Scientific Literature
Law Library

16

Federal records, though, are not just confined to the National Archives system.
Indeed, 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.



Lots of Federal Archives, Libraries,
and History Offices

Air Force Historical Research Agency
Air University Library
Army Heritage and Education Center
Department of Interior Library
Department of Labor Library
Federal Trade Commission Library
Maritime Administration Library
National Agricultural Library
National Library of Medicine
17

Most federal agencies have their own publicly accessible archives, libraries, and/or
historical offices (though, truth be told, some of these are facing budget cuts and
resultant access restrictions).

Here are some of the libraries and archives (some well-known, some obscure) of
interest that have proven of use in past research.



And Lots More

National Museum of American History
Library
Navy Department Library
Navy Operational Archives
Nuclear Regulatory Commission Public
Document Room
Securities and Exchange Commission
Library
U.S. Geological Survey Library
18

And here are some more.



Federal Libraries-Trade Catalogs

19

The next slides offer three examples of the type of records available in federal
libraries and archives.

For practitioners concerned with contamination issues stemming from TCE and
other cleaning solvents, historical trade catalogs from TCE manufacturing
companies, like this one for Detrex, can be of interest.



Federal Libraries-
Navy Shipbuilding Contracts

20

According to federal records retention schedules, federal contracts can be
destroyed 6 years and 3 months after final contract payment.

Yet, careful research at National Archives facilities and other federal records
repositories can often find copies of contracts and/or contract
correspondence…often in the files of agencies historically “cc’d” on contracts.

For Navy shipbuilding contracts from the first ½ of the 20th century, go to the Navy
Department Library at the Washington Navy Yard.



Federal Libraries-Published
Congressional Hearings and Reports

21

Congress loves to hold hearings and issue reports…occasionally, these are even
somewhat useful.

For example, this report is part of a large run of published hearings stemming from
the Federal Trade Commission’s comprehensive examination of alleged
monopolistic practices in America’s power industry during the 1920s and 1920s.
Basically, the FTC was trying to figure out which companies (via various holding
companies) owned which utility. Thus, these hearings are of great use, for
example, in researching the historical owners of manufactured gas plants

Well, the Federal Trade Commission Library maintains a run of the voluminous
published congressional hearings, which includes published transcripts and exhibits
from these inquiries.

As importantly, the National Archives maintains hundreds of boxes of the
background materials that the FTC used to create these published reports. These
items include subpoenaed board minutes, organizational charts, and various
corporate documents that also are of great interest.

Again, this is an instance where knowing the historical context can point you to
useful records.



Electronic Databases

Defense Technical Information Service
Energy Citations Database
Envirofacts
Federal Register
LexisNexis Congressional
Minerals Yearbook
National Technical Information Service

22

Federal records can also be found in various electronic databases.

I have purposefully, though, placed this list toward the end of my presentation, as I
do not want you to think that a simple Google search, or a search of ProQuest
Historical Newspapers or LexisNexis will yield a comprehensive set of federal
records.

That being said, like everyone else in this room, when presented with a new matter,
my first inclination is to Google it. There is nothing wrong with this.

However, please know that there are other print and electronic sources out there,
including those on this list, most of which are available on-line or at major university
libraries



Effective FOIA Requests, or
Channeling your Inner Geppetto

Not just “any and all
records”
Guide agency records
officers as they conduct
research on your behalf
Provide as much
information as possible

23

My final point concerns Freedom of Information Act (FOIA) requests.

Effective FOIA requests are crafted, and not just generated assembly-line style
where you ask for “any and all” records on a particular topic.

Remember that with a FOIA request you are basically asking an agency records
officer, who probably knows little if anything about your topic, and cares even less,
to conduct research on your behalf into their agency’s records.

Thus, the more information you can provide in your FOIA request, the more likely
you are to eventually get relevant records.

If appropriate and if known, provide known contract numbers, or known box
numbers, or any other type of information that can guide the records officer to
relevant records.



Contact Information
For more information on our historical
research services, please contact

Mike Reis,
Director of Litigation Research
301-279-9697
mreis@historyassociates.com

Steve Swisdak,
301-279-9697

24

For your reference, there are handouts available in the back that provide brief guides
on researching three types of cases:

Identifying and Characterizing PRPs
CERCLA Claims against the Federal Government
Product Liability and Asbestos Issues

I’ll be happy to answer any questions at this time. If you are interested in a more in-
depth discussion, please see me after these presentations, or my colleagues Mike
Reis and Jennifer Randazzo.


Historical Research Guide

Identifying and Characterizing PRPs
Environmental attorneys should not underestimate the benefits of historical research in complex
CERCLA and NRD cost recovery/sharing matters. Indeed, historical research yields invaluable
information as attorneys search for new PRPs, allocate cleanup costs among existing parties, and
identify/quantify possible orphan shares. When conducting such research, the answers to the following
questions will help you to determine each PRP’s nexus to the contamination driving cleanup and/or
restoration costs.

• Where was the company located? How long was it located there?
• What did the company manufacture? What raw materials were used? What by-products and
waste products resulted from the company’s activities?
• Was there a contaminant pathway from the company to the affected area?
• What is the company’s corporate history? Is the company or a successor financially viable?

In general, the following types of records are useful in PRP investigations.

• Historical Maps and Atlases
o Land Ownership Maps (including Sanborn maps)
o U.S. Geological Survey Topographical Maps
o U.S. Coast & Geodetic Survey Coastline Maps
o Interstate Commerce Commission Valuation Maps
• Historical Aerial Photographs
• City and Industrial Directories
• Historical Newspapers
• Corporate Records
o Annual Reports and Filings
o Moody’s Investment Manuals
• EPA records
o Site Files
o Shipping Manifests
o Notices of Violation
o Envirofacts Database
• U.S. Army Corps of Engineers Records
o Reports and Surveys
o Dredging and Filling Records
• State and Local Records
o State Environmental Files and Reports
o Department of Health Inspections
o Labor and Industrial Hygiene Agency Records
o Tideland and Riparian Permits and Files
o Sewerage Studies and Permits
o Local Government Records (e.g., assessor, city/county council, engineer, etc.)


CERCLA Claims against the Federal Government
For almost three decades, historical research has been a common, but critical, component of many
CERCLA cases, especially those in which companies attempt to establish the federal government’s liability
as a historical owner, operator, arranger, or transporter at a site. This guide identifies some records useful
in documenting the government’s potential liability for each of these CERCLA factors.

Records Documenting Government Ownership
• Real Property Records
o Federal Agency Property Records
o Local Deed and Title Records
• Land Ownership Maps
• Facility and Material Inventories
• Equipment Purchase and Sale Records
• Federal Agency Oversight Documents
• Corporate Annual Reports and Filings
• Historical Newspapers
• Business Directories

Records Documenting Government Operations
• Federal Government Contracts and Related Documents
• Federal Agency Directives, Manuals, and Specifications
• Site Inspections (federal and local agencies)
• Federal Agency and Congressional Oversight Documents
• State and Local Government Records (e.g., assessor, city/county council, engineer, etc.)
• Trade and Scientific Literature
• Input and Output Documentation
o Supply of Raw Materials
o Product and Price Determination
o Production Levels and Schedules
o Workforce Standards, Supply, and Disputes
o Waste Handling and Disposal

Records Documenting Government Arrangement and Transport of Waste
• Materials Contracts and Related Documents
• Bills of Lading and Transport Manifests
• Federal Agency Directives, Manuals, and Specifications
• Federal Agency and Congressional Oversight Documents
• Historical Maps and Aerial Photographs


Product Liability and Asbestos Issues
Effective historical research is especially critical in product liability cases that require documenting the use,
manufacture, and potential hazards of specific products (e.g., asbestos, chemicals, and radioactive
materials), as well as human exposure to alleged product hazards. Depending upon the product and
setting, historians find relevant evidence concerning historical products in disparate formats
including the following:

Product Use
• Product Catalogs and Business Directories
• Product Manuals, Specifications, and Instructions (issued by corporations or the government)
• Historical Newspapers and Periodical Literature
• Federal Government Safety Directives
• Employee Training Manuals

Manufacturing Process
• Corporate Annual Reports
• Business Directories
o Thomas Register of American Manufacturers
o Sweet’s Architectural Catalog File
• Patents and Patent Applications
• Trade Literature

Potential Product Hazards
• Product Manuals and Instructions
• Warning Labels
• Industrial Hygiene and Medical Studies

Researching Human Exposure to Asbestos in Maritime Settings
When researching human exposure to alleged product hazards, historians search for historical employee
lists, job descriptions, and the “time on risk” for potentially affected employees. For example, when
researching human exposure to asbestos on ships and in shipyards, the following types of records are
useful:

• Ship Muster Rolls and Deck Logs
• Ship Construction Specifications and Contracts
• Individual Service Records
• Qualified Product Lists and Government Production Specifications
• Ship Inspections
• U.S. Navy Manuals, Directives, and Instructions
• Shipyard Maps and Drawings
• Historical Job Descriptions

Skilled Investigators in Historical Research
If there are historical issues at the heart of your case, our professional knowledge of history and our broad familiarity
with government, corporate, and private records holdings will help you thoroughly and cost-effectively establish the
historical facts at issue. Since 1981, History Associates has worked on hundreds of investigations to help resolve
historical issues for legal disputes, regulatory matters, and public relations crises:

• CERCLA Cost Recovery • Manufactured Gas Plant Research • Site and Land Use Histories
• Government Contract Searches • Native American Rights Disputes • Superfund Cases
• Historical Standards Searches • Natural Resource Damages Research • Toxic Torts Research
• Insurance Recovery Research • Product Liability Research • Trade Literature Research
• Legislative & Regulatory History • PRP Searches • Water Rights Claims

How Can We Help You?
Uncover all the relevant historical information. Avoid surprises.
We have an unsurpassed knowledge of the federal Not only do our skilled historians efficiently find the
records system and experience conducting research information you need, but we understand the contextual
across the country and around the world in a wide variety significance of the records we uncover. Our knowledge
of archives, libraries, government offices, and private of history gives us the framework to know what
records collections. We know how to decipher the often information to look for. This allows us to develop leads
arcane systems used to organize historical records, to other historical records that can bolster a case or –
effectively employ on-line resources, and compile and perhaps just as importantly – reduce the likelihood that
deliver the evidence in a variety of formats, including: opposing counsel will produce surprises later.

• Chronological histories tracing and documenting “I have worked with HAI on at least three
the factual evolution over time. matters and they are outstanding. They
• Historical studies synthesizing primary and have literally saved us millions of dollars
based on their historical archival work.”
secondary sources into well-documented, readable
narratives.
—Gerry Caron, Cabot Corporation Counsel

• Issue papers tracing and analyzing significant
aspects of a case both in terms of their development For more information on our historical
research services, please contact
over time and their historical context.
• Oral history interviews that supplement the written Mike Reis,
Director of Litigation Research
record, provide leads to other valuable sources, and 301-279-9697
provide historical perspective. mreis@historyassociates.com
• Expert testimony on specific areas of concern. Steve Swisdak,
301-279-9697

Using Historical Research to Make Your Case: A Survey of Key Federal Records

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