First Environment’s Historical Research Cases
First Environment is often called upon to assist our litigation clients in researching site histories in order to “complete the story” of the site and provide critical evidence.
First Environment's litigation support team provides historical research on:
- Industrial processes
- Engineering/structural components
- Sewer and septic systems
- Building types and uses
- Raw material usage
- Environmental egress routes
- Chemical usage
- Waste and Wastewater deposition
- Munitions
- Weaponry/Aircraft
- Permits and Licensing
- Environmental Regulations
Case Histories
Clients depend on First Environment’s expertise in forensic environmental investigations, determining historic state of the art practices, obtaining legislative and regulatory histories, and establishing industrial standards of care for the period in question in environmental and toxic tort cases across the country.
Featured Article: Historical Research Aids Environmental Litigation
From the President of First Environment
Historical Research at First Environment
Welcome! Today’s newsletter focuses on historical research and the role it plays in environmental investigations and litigation. Historical research into the manufacturing processes employed at a site and their associated contaminants has become a key component to understanding environmental liabilities. Older industrial cities may have hundreds of properties that once housed thousands of former manufacturing processes and assembly lines. Environmental litigation has broadened in recent years in an attempt to capture additional defendants who may have only a tangential connection to a site. Liability may stem from corporate predecessors that ceased to exist many years ago. Putting together the pieces of these predecessors to understand the industrial history of the property often provides counsel with a formidable defense to otherwise thin or even baseless allegations. I hope you enjoy reading this newsletter and that you find it informative and timely.
B. Tod Delaney, Ph.D, P.E.
President
Herrington Field USAAF, Kansas
The U.S. Army Air Force extensively used Herrington Field during World War II to process military aircraft including heavy bombers such as the B-29. Raytheon’s predecessor operated the airfield in the 1950’s but argued that much of the contamination occurred during the war years and that Raytheon should not be solely liable. The Tenth Circuit, looking for “clear error” in the District Court’s decision and granting the lower court “great deference” on the matter of that court’s credibility determinations, held that the accounts of the government’s historical expert were accurate and compelling and supported the lower court’s finding that the Army Air Force did not use TCE at the site during the war years.
Historical Experts
The US Government retained a historical expert to research the history of the Army’s operations at the site and its use of TCE during the war years. The Army’s witness was an historian specializing in 20th Century American History, including World War II and the wartime economy. The court found this witness to be “highly credible and able to provide both a compelling historical context for the vast documentary evidence concerning the allocation of TCE during the wartime economy as well as an informed independent analysis of those documents.”
Fact Experts
On the other side of the argument was the credibility of an Army officer named Colonel Bickerstaff, who was stationed at Herrington Field for at least part of the war and another veteran who was stationed at the base. Colonel Bickerstaff testified that he remembered the use of a vapor degreaser at Herrington, which would have necessarily contained TCE. The District Court stated “Nonetheless, the court, for several reasons, is not persuaded that the Army used a vapor degreaser at HAAF. Colonel Bickerstaff, at the time of his preservation deposition, was seventy-nine years old and, as he himself candidly offered, he has “been at many bases over 21 years and did a lot of things and [he has] kind of lost track of what [he] did do.” The District Court further discredited Colonel Bickerstaff’s testimony about his description of the degreaser and how it allegedly operated.
The court also found the testimony of another veteran fact witness unreliable “because the events occurred nearly 55 years ago and, in essence, it was difficult for him to recollect those events independent of the questions posed by Raytheon’s counsel.” That witness also stated that he could not recall the specific name of a solvent because the event had occurred “55 years ago” and [t]hat’s too many years ago.” The appellate court held that these findings by the District Court, discrediting the two veteran fact witnesses, were not clear error.
Although the court acknowledged the credibility of other veteran fact witnesses called to the stand, it ultimately held in favor of the United States on the critical issue of whether TCE was ever present at the site based on the expert testimony of the historian, not the testimony of the veteran fact witnesses who were actually stationed at the base.
Conclusion
In light of the Raytheon decision, litigants must be prepared to provide an accurate historical account of site activities, and obtain and research the historical documents to back it up. Experts who have access to the historical accounts of an operation combined with the ability to help the trier of fact understand the timing and context of the historic operations at a particular base or site, is a key asset in environmental litigation.
Newsletter: Environmental Litigation Support
Issue 2
November 2011
Disclaimer
This newsletter is made available by First Environment, Inc. for educational purposes, to provide the public with general information, and not to provide legal, technical or scientific advice. Access or use of this newsletter does not create a client relationship between you and First Environment, Inc. First Environment, Inc. attempts to ensure the accuracy of the information but cannot guarantee that all of the information is accurate. This newsletter should not be used as a substitute for competent legal, technical or scientific advice from a licensed professional in your state. No person should rely on the contents of this newsletter with respect to any decision and First Environment, Inc. disclaims responsibility for any such reliance.
Copyright © First Environment, Inc. 2011
First Environment has rendered numerous opinions, using proven historic research methodologies and historic libraries on the use, disposal and fate of contaminants. We routinely obtain historic regulatory, standard of care and operational data including the history of manufacturing and associated waste handling practices for timeframes that are relevant to the litigation dating back to as early as the 1800’s.
Historical Research Aids Environmental Litigation
Historical research is playing a critical role in environmental litigations all over the country. One example is Raytheon Aircraft Company v. United States 590 F3d 1112 (10th Cir. 2009). This case was an appeal from a judgment in favor of the United States in a cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 where Raytheon was found solely liable for the cleanup costs associated with TCE contamination at Herrington Field in Herrington, Kansas.
First Environment was retained to evaluate the potential liability exposure for contamination found at a site in New Jersey owned by a successor of an electronics and aerospace company. First Environment reviewed the historical activities conducted on the property to
First Environment assisted a client with determining the types of munitions that were stored and disposed at a military storage facility used during World War II to support the war effort in the Pacific Theater. First Environment performed historic and technical research to
First Environment was called upon as an expert witness to render an opinion regarding the use of chlorinated solvents, including TCE and its breakdown products, at Old Hammer Field in Fresno, CA. First Environment determined from historic research that, from the 1940s through the 1980s, the use, transport, storage and disposal of the solvents was not consistent with then-prevailing state of manufacturing-industry knowledge, practices, and trends and that such misuse caused the discharge of the solvents to the ground causing the defendants to incur liability under Federal and state environmental statutes.
First Environment is currently helping a client defend against a toxic tort lawsuit related to residual ground water contamination resulting from the manufacture of electronic components. The lawsuit involves claims from hundreds of
At a site in Mentone, California, First Environment provided an expert analysis using its engineering and industrial hygiene expertise of the various steps involved in the grinding and processing of Ammonium Perchlorate. The work was conducted at the
determine the source of contamination. It also reviewed the regulatory requirements in effect at the time and the site investigation and remediation activities conducted at the property to date.
identify the munitions and their related contaminants. First Environment obtained classified historic documents from the US Army Corps of Engineers regarding specialized weaponry and procedures for disposal and storage of the weaponry.
neighboring property owners claiming bodily injury and property damage related to vapor intrusion of chlorinated solvents, including PCE, TCE, TCA and their breakdown products, into their homes from a ground water-borne source. The case involves the review of thousands of historic documents on the use and management of chlorinated solvents during the plant’s operational years.
Redlands facility for the period of time ranging from 1956 to 1974 where Ammonium Perchlorate was used as an ingredient in rocket propellants produced at the Redlands facility.
First Environment maintains an extensive library of documents, technical papers and books concerning historical industrial practices, operation and maintenance procedures, manufacturing practices, past regulatory requirements, and chemical usage, including a vast compendium of materials related to chlorinated solvents. We have also developed an interactive chronological software application for assembling and presenting timelines to support case strategies.
Contact
Arthur J. Clarke, J.D.
Market Area Director, Litigation and Regulatory Services
First Environment, Inc.
91 Fulton Street
Boonton, NJ 07005
973 334-0003
ac@Firstenvironment.com
www.firstenvironment.com
