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

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

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 SwisdakHistory Associates IncorporatedDeputy Director of Litigation Research(301) [email protected]

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.



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Presentation Outline

Federal Records Pipeline

National Archives

Federal Libraries

Electronic Databases

Effective FOIA Requests

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.



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Historical Research Can Provide a Legal Paddle

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.



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Select Legal Drivers

CERCLAPRP SearchesNRD Cost Recovery and SharingToxic Torts/Product Liability MattersFailure-to-Warn CasesCommon Knowledge/

Statute of Limitations All Appropriate Inquiries for BrownfieldsHistorical Land UseHistorical Standards and Practices

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.



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Key Federal Records Questions

Who created records?

What records were created?

What records were kept?

Where are the records now?

Agency ContextWhat 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 PlanWith 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



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Federal Records Pipeline

Federal Agency

Federal Records Centers

National Archives

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 AgencyAccess is typically through FOIA request

FRCNon-current, inactive, or permanent records. Most will be destroyed.Agency-controlled records. Typically need FOIA request to accessRecords 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 ArchivesRecords of permanent historical valuePublicly accessible records, though the Archives also maintains classified recordsFOIA requests to NARA are rarely productive, as you must do research yourself



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National Archives

14 facilities and 13 presidential libraries9 billion pages of textual records20 million photographs7 million maps, charts, and architectural

drawings

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 records20 million photographs7 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?



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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

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 CatalogElectronic index to all its recordsOpen 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.



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National Archives Fun Finds

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.



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National Archives Fun Finds

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



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National Archives-Textual Documents

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.



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National Archives-Government Manuals

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.



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National Archives-Aerial Photographs

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.



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National Archives-Still Photographs

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.



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National Archives-Maps

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.



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Library of Congress

142+ million items

Geography & Map Reading Room

Newspaper & Periodical Reading Room

Trade and Scientific Literature

Law Library

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.



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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

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.



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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

And here are some more.



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Federal Libraries-Trade Catalogs

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.



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Federal Libraries-Navy Shipbuilding Contracts

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.



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Federal Libraries-Published Congressional Hearings and Reports

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.



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Electronic Databases

Defense Technical Information Service

Energy Citations Database

Envirofacts

Federal Register

LexisNexis Congressional

Minerals Yearbook

National Technical Information Service

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 ProQuestHistorical 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



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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

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.



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Contact Information

For more information on our historical research services, please contact

Mike Reis,Director of Litigation [email protected]

Steve Swisdak, Deputy Director of Litigation [email protected]

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

Identifying and Characterizing PRPsCERCLA Claims against the Federal GovernmentProduct 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.

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.)

Historical Research Guide

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 • Government Contract Searches • Historical Standards Searches • Insurance Recovery Research • Legislative & Regulatory History

• Manufactured Gas Plant Research • Native American Rights Disputes • Natural Resource Damages Research • Product Liability Research • PRP Searches

• Site and Land Use Histories • Superfund Cases • Toxic Torts Research • Trade Literature Research • Water Rights Claims

How Can We Help You?

Uncover all the relevant historical information. We have an unsurpassed knowledge of the federal records system and experience conducting research across the country and around the world in a wide variety of archives, libraries, government offices, and private records collections. We know how to decipher the often arcane systems used to organize historical records, effectively employ on-line resources, and compile and deliver the evidence in a variety of formats, including: • Chronological histories tracing and documenting

the factual evolution over time.

• Historical studies synthesizing primary and secondary sources into well-documented, readable narratives.

• Issue papers tracing and analyzing significant aspects of a case both in terms of their development over time and their historical context.

• Oral history interviews that supplement the written record, provide leads to other valuable sources, and provide historical perspective.

• Expert testimony on specific areas of concern.

Avoid surprises. Not only do our skilled historians efficiently find the information you need, but we understand the contextual significance of the records we uncover. Our knowledge of history gives us the framework to know what information to look for. This allows us to develop leads to other historical records that can bolster a case or – perhaps just as importantly – reduce the likelihood that opposing counsel will produce surprises later.

“I have worked with HAI on at least three matters and they are outstanding. They have literally saved us millions of dollars based on their historical archival work.” —Gerry Caron, Cabot Corporation Counsel

For more information on our historical research services, please contact Mike Reis, Director of Litigation Research 301-279-9697 [email protected] Steve Swisdak, Deputy Director of Litigation Research 301-279-9697 [email protected]