Within the world of environmental litigation, Natural Resource Damage (“NRD”) issues present us with a fascinating subset of historical research challenges. Most of TRG’s work related to environmental litigation involves records from the 20th and 21st centuries, to document various aspects of owner and operator activities at contaminated sites. However, with NRD issues, our typical scope broadens to all historical contamination affecting land, water, fish, and wildlife in a given area, essentially from the moment that it ceased to be pristine. That broad scope often involves research into records far older and sometimes slightly different than what we typically review.
Federal law, specifically under CERCLA and the Oil Pollution Act (“OPA”), authorizes the “assessment and restoration” of natural resources damaged by contaminants. NRD assessments require a determination of the “baseline” condition of the affected area, i.e., its condition before the contamination incident. Sometimes the contamination is singular and sudden, such as oil spills: the OPA, for instance, was a response to the 1989 Exxon Valdez spill, which contaminated large parts of Alaska’s Prince William Sound, a relatively pristine location with little prior human footprint. Other times, contamination has occurred over many decades and has involved multiple parties and incidents, making an assessment of any baseline condition potentially more challenging.
Our research objective is therefore to document the history of the contaminated area from its undamaged condition forward, identifying every potential contributor to environmental damages that have affected the baseline condition. Often included as part of this work is the identification of potentially responsible parties (“PRP”) and their legal successors, who may share liability for the environmental degradation of a site. Especially in heavily industrialized areas, our research typically reveals a wide variety of potential contributors to natural resources damage, sometimes from well before the presumed period of interest.
Maps, property descriptions, newspaper articles, and local government records from the 18th and 19th centuries have proven vital in determining when contamination first occurred at a particular site, often in conjunction with the onset of industrialization, and there is a unique excitement when we get the opportunity to pore over records of that vintage (the earliest of which, so far, has been a map from 1777). While most early recorded contamination was of an organic (if very unpleasant) nature, such as offal, feces, and other “nuisances,” longstanding industries such as tanning, dyeing, glassmaking, ropemaking, and glue manufacturing were potential early sources of lasting contamination from heavy metals such as arsenic, chromium, and lead. Petroleum contamination increasingly became an issue during the latter half of the 1800s with the advent of crude oil refining. Even areas still relatively untouched by direct industrial development were contaminated over time by events such as floods, dredging, or the dumping of dredging spoils.
As our research moves forward into the late 19th and 20th centuries, we encounter records typical of other environmental projects that we work on, such as the Progressive Era health and hygiene records, which often served as the first detailed descriptions of industrial contamination; industry records, including trade journals; federal records generated as part of government oversight, particularly during the massive wartime industrial efforts of WWI and WWII; and state and federal environmental law enforcement records from the mid-1960s to the present. Collectively, these records help our clients understand the full range and scale of historical environmental impacts at each site of interest.
Not every project provides us the opportunity to conduct research that spans the 1700s to the present, but our skilled staff are well-equipped to tackle the ones that do. Our background in NRD-related work shows that no matter the time period or the complexity of the issue, TRG can uncover crucial documentation that provides our clients with clarity and context.
