Finding Evidence: Research Tactics for Environmental Law & Toxic Torts

Recently, chemical releases and spills into local waterways by a chemical manufacturer and other industry in West Virginia have captured the national spotlight. For those familiar with environmental history, however, these tragic occurrences have been far more commonplace, albeit less publicized, than many may realize.

In the last 150 years, large quantities of polychlorinated biphenyls (PCBs), methyl tert-butyl ether (MTBE), chlorinated solvents, perchlorates, byproducts of old manufactured gas plants (MGPs) and other chemicals, oils, and wastes have been released into America’s waterways, ranging from the mighty Hudson, to the smallest of tributaries. Until the time of modern environmental awareness in the 1960s (pre-Silent Spring), it was commonplace for industrial concerns to simply release waste products into the neighboring river and assume (wrongly) that any harmful effects would be diluted and rendered harmless by the time they flowed downstream to the next city.

Modern advances in technology and environmental awareness and oversight have prevented many costly and environmentally damaging releases since the 1960s. State and federal officials are now overseeing and investigating unauthorized spills or releases into our waterways, and have begun to understand the retroactive liabilities of spills and incidents from the past in order to kick start large cleanups. While these officials have the best of intentions in trying to identify responsible parties of historical spills and releases, budget cuts and understaffed agencies often do not have the time or resources to do a thorough review of the historical record. One or two deep pocket successor corporations are often identified by these agencies and held wholly responsible, without delving any deeper. Oftentimes, the facility in question was closed more than half a century before and the responsible party has no record of what the facility in question manufactured or any details surrounding its waste disposal practices, or if any nearby industries may have contributed to the release and should share the burden of the cleanup costs. Where does a company or law firm begin when presented with such a challenge?

Fortunately, a wealth of information on the historical operations, activities and even the waste disposal activities of these and other potentially responsible parties exists in the records collections at federal, state and local levels, but only for professionals who know where to find it. Locating appropriate collections and gaining access to them is a highly complicated task involving Freedom of Information Act (FOIA) and/or Freedom of Information Law (FOIL) requests, frequent travel to archival repositories, and hours of digging through dusty Bankers Boxes to find a needle in a haystack. The records needed often sit untouched and forgotten about in basements, attics, or even the closets of government agencies. The researchers at Taylor & Hammel LLC, who hold Master’s degrees in history and information science, are often brought into the discovery process to locate such records collections. We know which repositories to target and how to search and mine library databases and interpret archival finding aids. The raw, historical data we are able to find is used to fill in informational gaps that may remain in environmental and toxic tort cases.

What do such research efforts and tactics look like? In the weeks, months and years to come, researchers working in West Virginia, for example, will most likely contact the West Virginia Department of Environmental Protection, which may have records (including inspection reports) detailing volumetric data from the facilities involved in the spills, as well as, information pertaining to past violations such as previous chemical spills. State and local courts could be a valuable source of regulatory information, as could regional environmental protection agencies and health departments. The researchers would also do well to contact local historical societies and/or universities. Often times, companies will donate documents and records of an ephemeral nature to these repositories. Photographs, for example, can show how the layout of an industrial site has changed over time. So can architectural plans and maps. Furthermore, these types of primary source documents could be used as graphical elements in the courtroom. In sum, researchers on these projects will need information from a variety of repositories and records collections to build more comprehensive environmental site histories that may prove invaluable to ongoing legal cases.