Historical Research Sheds Light on Superfund Cases

Love Canal in New York.  The historic Pearl Harbor on Hawaii’s island of Oahu.  The Exxon Valdez oil spill in Alaska’s Prince William Sound. All famous names and all with one thing in common – each was or currently is a designated Superfund site.

Environmental disasters and emergencies make headlines all the time. For a brief moment, the media shines a spotlight on an industrial site with a recently discovered toxic past like Love Canal or Pearl Harbor. Or, it enables the public to watch in real time as one-off incidents involving hazardous chemicals like the Exxon Valdez oil spill unfold.

This coverage captures and weighs on the public’s collective conscience, but the environmental impact lasts well beyond acute attention spans and ever-churning news cycles. It can take years -- but more likely decades -- for communities to fully cleanup polluted sites. It’s a complex process that requires participation at all levels, including local, state, federal, and also from the parties responsible for creating the environmental hazard. And, since 1980, the Environmental Protection Agency (EPA) has led and coordinated the process.

The History of the Superfund Program

In that year, Congress granted the EPA authority to manage the cleanup of abandoned hazardous waste sites and respond to environmental emergencies when it passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The program has evolved over time, but from its inception it’s been dubbed “Superfund,” which refers to the trust fund created to help pay for clean-up costs.

To become eligible for Superfund status, a site is first investigated and then assessed using the EPA’s Hazardous Ranking System (HRS) to determine its threat to both the environment and public health. Sites with an HRS score of 28.5 or higher are placed on the National Priorities List (NPL) and become eligible for Superfund-financed remedial action.

Today, there are over 1,300 sites on the list. Each is heavily contaminated with harmful substances that must be properly treated and disposed of. Some of the most common substances include lead, asbestos, mercury, and polychlorinated biphenyls (PCBs), which are typically found at industrial and manufacturing sites. A key aspect of the Superfund program is the EPA’s authority to compel responsible parties of such sites to perform cleanups or reimburse the government for EPA-lead ones.

The Role of Historical Research

Determining to what extent a responsible party is liable for the contamination found at a Superfund site is another complicated piece of the cleanup effort, and oftentimes one that is litigated for years.

Our job as historical researchers is to help clients that have been identified as responsible parties understand their presence at a Superfund site over time -- from the operations and activities performed, to the quantities of chemicals produced, to any specific environmentally hazardous incidents that occurred there. A thorough understanding of a site’s history lends to a more informed assessment of a corporation’s liability.

Historical research can also uncover other Potentially Responsible Parties (PRPs) that may have contributed to the problematic environmental situation and therefore need to be brought into a coordinated cleanup effort. There may have been successor and/or predecessor entities that operated at a Superfund site. In some cases, clients may need to determine whether or not the federal government bears responsibility at a contaminated property as an “owner” of the site or the hazardous substances, as an “operator” having “substantial or actual control” over various aspects of the production process, or as an “arranger” for the disposal of hazardous substances either on- or off-site.

Gaining insight into the various parties that operated at a Superfund site requires strategic historical research methods and extensive experience in unearthing documents in records collections at federal, state, and local levels. It requires intimate knowledge about the government agencies that have oversight over industrial sites and environmental concerns and their record keeping practices. The records our clients need are often sitting untouched in basements, attics, or even the closets of government agencies – places our professional researchers have spent countless hours in poring over documents.

The Future of Superfund

We’ve been conducting research for clients on litigation related to Superfund sites for over a decade. Like many of our clients, we’re eagerly awaiting news on the proposed changes to the Superfund program under the EPA’s newly appointed administrator, Scott Pruitt, in the wake of significant budget reductions to the agency.

In May, in a memo to his staff, Pruitt announced that the Superfund program would receive priority under his leadership, restoring it to its “rightful place at the center of the agency’s core mission.” A task force has been created to streamline the Superfund program and process with the goal of making remediation efforts more effective and expeditious, which could potentially address long-standing criticisms of it. Last week, Pruitt seemed to follow-through on his promise when he declared that the EPA would focus on a “top-10 list” of Superfund sites that are in need of aggressive remediation.

Though there will be changes, responsible parties will continue to bear the financial onus of cleaning up and restoring the hazardous, toxic sites they once operated on. Historical research will therefore continue to be a crucial component of litigation strategies that seek to accurately assess what that onus might be.

 

The Keasbey and Mattison manufacturing facilities and waste disposal areas in the 1930s. (Source: EPA)

The Keasbey and Mattison manufacturing facilities and waste disposal areas in the 1930s. (Source: EPA)