Another Lead-Related Crisis: East Chicago, Indiana

Last week, we began following the news about East Chicago, Indiana, where dangerously high levels of lead and arsenic have been found in the soil of a public affordable housing community and nearby elementary school affecting hundreds of families and children.

It’s a familiar story after Flint, Michigan’s lead-contaminated water crisis made headlines earlier this year. Both fall within the Environmental Protection Agency’s Region 5. Their response as well as other governmental agencies at local, state, and federal levels has been criticized.

There are, of course, some big differences. The affected West Calumet Complex in East Chicago falls within an already designated EPA Superfund site where years before companies “smelted, dealt with or processed lead for decades,” according to CNN. The EPA has since sued several of these Potentially Responsible Parties (PRPs). But attorneys will now have to determine to what extent governmental agencies share in ongoing remedial efforts.

To fully understand the crisis in East Chicago, government, environmental, and public health officials, as well as attorneys from both sides, would do well to incorporate historical research into their investigations.

We regularly conduct historical research as part of a due diligence approach to PRP investigations. This is often a critical component that helps our legal clients build their environmental and toxic tort cases. To learn more, please read our previous posts listed below:

Finding Evidence: Research Tactics for Environmental Law & Toxic Torts

The Ongoing Water Crisis in Flint Michigan

More Legal Action in the Wake of Flint Water Crisis

Taylor & Hammel LLC Turns 10

We’re celebrating our tenth anniversary and what a decade it has been! It’s been fun to think about where we’ve been over the past decade and where we hope to go as well as the changes in our lives and with technology. You may have seen our social media posts as we’ve reflected on this or received postcards announcing this milestone in the mail.

Below are some more of our thoughts on the projects we have worked on and the people we have worked with over the years, injected with some feedback received from several clients.

When we started, we had no idea that we’d take on such an interesting range of projects across various litigation practices. John Taylor and Matt Hammel founded the company to focus on potentially responsible party and manufactured gas plant investigations, industrial site reviews, and other litigation related research. They wanted to serve the unfulfilled niche – historical research primarily for litigation – that they noticed while working for a national history corporation dealing with Fortune 500 clients and major law firms on multi-million dollar cases.

In May 2006, the two decided to pool their extensive knowledge of federal, state, and local record collections as well as their experience in developing cost-effective research strategies and managing teams of researchers in the field to create Taylor & Hammel LLC.

Ten years later, T&H has grown and has had some amazing men and women working with us over the decade with backgrounds in history, archives, library science, natural resources, communications, and real estate development. While Matt Hammel is now a school teacher back in his native Minnesota, he still works closely with T&H on proposals and joins us in the field during the summer months.

During this time, we’ve developed close relationships with a number of clients.  We even had a client work with us for a few weeks on an environmental project, which was quite a thrill for all of us:

“It was a sincere pleasure to work with your team. Those I worked with were extremely knowledgeable and super patient with someone who was trying to get more experience performing historical research. I greatly appreciated the opportunity to observe and learn.” — Barbie Harmon, Freeport-McMoRan Inc.

All of us are proud of the relationships we have developed with law firms and businesses throughout the U.S.

“Kelley & Ferraro, LLP has been working with T&H for ten years, during which time we have been provided prompt and detailed research to assist our clients, fair pricing, and great customer service. Our office looks forward to a continued working relationship with T&H.” — Joyce Reichard, Kelley & Ferraro, LLP

We’ve always focused on providing historical research services for litigation with an emphasis on environmental, toxic tort, and product liability litigation.

“Taylor & Hammel has provided our firm with outstanding research results over the past decade. They often provide research options that we would not have thought of.  Their expertise is priceless. We look forward to working with them for another decade — or more.” — Eve Marie Conaway, Brookman, Rosenberg, Brown & Sandler

We initially developed a reputation for providing research services for asbestos litigation primarily related to Navy exposure cases.

“The deck logs that you found for me were very useful in substantiating my claim for the Veterans, without which I don’t know where I would have gotten needed information.” — Private Client

Over the decade, we have performed hundreds of comprehensive investigations of U.S. Navy, Coast Guard and Maritime Commission vessels to understand the machinery and insulation aboard them for both Defense and Plaintiff firms.

More recently, the bulk of our projects have dealt with historical, environmental issues. We’ve become a sought after company for research related to Superfund sites throughout the country.

“Taylor & Hammel has provided me and my firm with top-notch historical research on a variety of environmental projects. [They] have repeatedly demonstrated the ability to plumb the depths of public and private records repositories to piece together arcane and complex histories. They consistently are able to distill reams of information in concise and easy-to-use reports, making the information both useful and accessible. I value my professional relationship with Taylor &  Hammel and am grateful for their excellent work on behalf of me and my clients.” — Travis Waldron, Gallagher & Kennedy

We’ve dug into records related to water rights issues between states, land rights matters and patent issues for town sites on Native American lands, and legislative issues dealing with oil and drilling sites in Alaska.

“I am confident that without your having found and provided the transcript, we never would have known the extent of the effort Oklahoma went to in order to use Texas demand for water to justify its reservoir projects.” — Craig Corona, Waterlaw

“Everything you have provided us this morning is invaluable. The information you’re finding is a game changer for us.” — Nathan Bracken, Smith Hartvigsen PLLC

We have also been tasked with collecting land appraisal records related to railroad lines around the U.S. in an effort to establish ownership of right of ways and lands around these lines.

“Our surveying firm has used Taylor & Hammel to research the National Archives for railroad maps for the last 4 years. The T&H team has been great to work with and saved us a lot of time.” — Matthew L. Martini, PLS, PP, Keller & Kirkpatrick, Inc.

For the Sierra Club, we collected historical environmental data related to coal, crude oil, and natural gas accidents and disasters in the United States from 2004 to 2014 for a data visualization project which has been made available online.

“The Sierra Club hired T&H in 2014 to research and compile ten years’ worth of data on fossil fuels-related disasters across the United States. We used the data to populate an interactive map showing the breadth of disasters and their impact on communities. T&H provided high quality data and were a great pleasure to work with throughout the process.” — Sophie Matson, Sierra Club

We’ve taken on other one-off projects from time to time that aren’t necessarily related to litigation. Some of the more interesting ones included research in to Nixon’s “Enemies List” and reviewing and scanning records for the Federal Reserve Bank.

From the beginning, we’ve prided ourselves in being a small business that is responsive to our clients and their research needs in a timely manner. We’ve always maintained a neutral stance no matter which area of litigation or type of project we’re working on. We’re not advocates. We’re historians and researchers that expertly find the documentation our clients need.

“Taylor & Hammel has always provided professional customer service and a high quality end result.  Additionally, each time they are tasked with a search, we’re provided with options that best fit our budget.” — Stacey Miller, O’Brien Law Firm

So, as we celebrate our anniversary, we wanted to take the opportunity to tell you a little bit more about ourselves both in our own words and our clients’. We’d also like to thank our clients — past, present, and future — for their business. What better way to do this then by offering 10% off a future research project? Please contact us for details.

Postcard Final Front (Small)

More Legal Action in the Wake of Flint Water Crisis

We blogged about the Flint water crisis when class action lawsuits were filed earlier this year.

The crisis began when Flint switched its water supply from Lake Huron via Detroit’s water system to the Flint River in April 2014. Elevated levels of lead were found in its drinking water as a result, but it took months for the city to publicly acknowledge the problem and begin remediation efforts.

Last week, a $220 million damages claim against the U.S. EPA was filed by lawyers representing affected Flint residents. Criminal charges were also brought against two state officials and a city employee.

Flint is not the first public health incident related to lead contamination in our nation’s history. We’re all too familiar with the decades-long effort to rid older homes, apartment buildings, and public facilities of lead-based paint. The focus is now shifting to the aging infrastructure and pipes that leach lead and contaminate public drinking water.

We’ve learned that the crisis in Flint is not an anomaly. First, there was Sebring, Ohio, where residents were advised against drinking tap water and schools were shut down for several days. Then there was USA Today’s investigative reporting into lead contaminated water in hundreds of schools and daycares throughout the country. Even before Flint, there was controversy surrounding record levels of lead in Washington, D.C.’s tap water. These are just a few examples.

School districts, towns, and cities are now working to swap out old pipes for new ones and implement remediation plans to ensure that public drinking water is safe. Allocating costs and figuring out who bears – and shares – the burden of such work will be figured out through litigation.

This is where our services are normally employed. We regularly conduct historical research on behalf of attorneys for environmental and toxic tort litigation. We’re asked to identify potentially responsible parties (PRPs) and their involvement in such crises.

Moreover, we’ve been asked in the past to document the history of waste treatment and water treatment systems (including the extensive sewer and piping systems associated with them) in an effort to understand the development of these systems as well as any modifications, alterations, and expansions to them. Of particular interest is whether or not these systems have been regulated by federal or state agencies over time. Our findings are then used to determine each PRPs’ responsible stake in remediation efforts.

The legal cases related to the various lead contaminated water crises throughout the country are only just beginning.

Obvious PRPs have already been identified. Yesterday, both President Obama and Michigan Governor Rick Snyder admitted that the government failed residents of Flint. But at what level? The EPA is placing blame on state appointed officials, while the state blames the EPA. In Sebring, the Ohio EPA revoked the license of the water treatment plant operator but also fired some of its own staff members.

What about other PRPs? Additional ones such as companies that manufactured or installed piping may be identified in the future. Questions of PRPs will also be raised. As just one example, was there negligence of water or sewerage plant operators in maintaining these systems? These questions will only be answered as a result of due diligence research, which should include historical research as a critical component. Such an approach will provide a more comprehensive understanding of the issues at hand in Flint or any other area dealing with a lead contaminated water crisis.

The Role of Historical Research in Product Liability Litigation

Product liability is not necessarily an area of law many people immediately associate with the need for conducting historical research. After all, litigation over an injury involving burns from a hot cup of coffee or an exploding soda bottle doesn’t have much to do with dusty old historical documents. Or does it? What about an injury sustained while operating a piece of machinery that came with an inadequate instruction manual? Or an injury from a household product that had a misleading label? And what about the potential successor liability risks involved when acquiring a company that might have manufactured a defective product?

Similar types of situations were examined at last month’s DRI Product Liability Conference, which we attended because such situations may very well require historical research efforts, as part of an effective litigation strategy, or during a thorough due diligence investigation. Taylor & Hammel is often approached by companies seeking to defend product liability claims, and by firms representing plaintiffs who have sustained injuries from particular products. Of course, before we take on any projects we diligently check for potential conflicts as it is always our goal to serve as neutral fact finders. Given our proximity to so many valuable repositories in the Washington, DC, area, and our expertise in knowing how and where to look for potentially relevant documents, we are well-positioned to help locate the “smoking gun” that could make or break a claim.

Product liability is, in essence, the liability of any party along the distribution chain of a defective product, for damages caused by the use of that product. Historically, if an injured party had no contractual relationship with the maker of a defective product, there was no basis for liability, and therefore no recovery. Caveat emptor was the only protection available in many cases. As the law evolved, liability shifted from one based in contract to one grounded in tort law, starting with Justice Cardozo’s famous Macpherson v. Buick Motor Company decision in 1916, and culminating with the landmark 1963 California Supreme Court case, Greenman v. Yuba Power Products. Today, with some variability among the different states, product liability is generally considered to be a strict liability offense, meaning that fault is irrelevant and the only requirement is that the product be defective. Product defects may occur at the design stage, the manufacturing stage, or in the marketing of the product itself. Liable parties include not only the original manufacturer, but also potentially the retailer who chooses to place a product on the shelf for sale, regardless of any knowledge or control over the existence of a defect. The stakes, therefore, are high, and both plaintiffs and defendants need to be sure they have access to the documentation they need to help prove or disprove liability.

Cars Database
Source: Cars Database

Despite being a strict liability offense, there are defenses available to a product liability claim, some of which are very relevant to the kinds of services we at T&H can provide. For example, relevant historical documents might include contemporary scientific and trade literature regarding the product in question, as part of showing industry practices and recognized standards. This was the case in a recent project that we worked on, in which trade literature and product manuals confirmed that the only standard for the industry was actually the manufacturer’s standard. Similarly, historical literature about comparable products could be used to show the existence of alternative (i.e., safer) designs. Locating copies of old product instruction manuals or historical advertisements in consumer magazines might help show whether a company provided adequate warnings to the consumer, or whether it published misleading marketing information. Searching for government agency filings, such as with the U.S. Patent & Trademark Office, can also provide potentially useful information regarding a company’s knowledge of particular design defects. Finally, compilation of a particular company’s history could uncover potential successor liability claims that might affect the decision whether or not to proceed with a merger or acquisition.

These are just some of the types of historical documents waiting to be unearthed, and many of them can be found here in the Washington, DC, area. In addition to the vast resources available at Library of Congress, including an extensive collection of historical scientific and trade literature, books, technical journals, conference materials, newspaper, and magazines, there are numerous other repositories T&H researchers work at on a regular basis. These include government agency libraries, the National Archives, and the Smithsonian Institution libraries, among many others. When considering a particular strategy for pursuing or defending a product liability claim, those dusty old historical documents might be more relevant than you think.

Implications of the Clean Power Plan on Historical Research

We’ve been closely tracking litigation related to the EPA’s proposed Clean Power Plan (CPP), which seeks to reduce carbon pollution from power plants and includes state-by-state mandates. Recently, the Supreme Court stayed the implementation of the plan until the U.S. Court of Appeals for the District of Columbia Circuit completes its review.

If enacted, the CPP’s compliance component would require more disclosure in the form of electronic reporting, thereby increasing transparency into the operations and activities of power plants throughout the U.S. This is where our interest lies given our experience conducting historical environmental research into former industrial sites and manufactured gas plants for our legal and business clientele.

The compliance component would generate an untold amount of new information that could be utilized in future litigation. Operators of power plants as well as local, state, and federal EPA divisions would generate a plethora of new documentation related to emissions and performance rates. The potential disclosure requirements bring up a host of questions for us as researchers to consider. What types of records will be created and by whom? Where and how will such records be stored – in digital databases, in the archives of governmental agencies, or, presumably, both? When will such records be made accessible to the public? Will they be easy to access? Which record types will still require Freedom of Information Act (FOIA) or Freedom of Information Law (FOIL) requests to be submitted by us on behalf of our clients?

These questions may all be moot if the CPP is not upheld. But, if the plan is eventually implemented by the court, these questions will of course be relevant to us so we can meet the research needs of our clients involved in environmental litigation.

T&H Case Study: Creating a Timeline of Fossil Fuel Disasters in America

Fossil Fuel Disasters in the US

The Sierra Club, the nation’s largest grassroots environmental organization, requested our services to collect historical environmental data related to coal, crude oil, and natural gas accidents and disasters in the United States from 2004 to 2014. The result was a data visualization product that illustrated that fossil fuel related disasters could happen anywhere, even in one’s own backyard. Continue reading

Understanding the Historical Environmental Story Behind the EPA’s Animas River Spill

It’s been over a week since the Environmental Protection Agency (EPA) inadvertently released an estimated three million tons of toxic wastewater into the Animas River, which temporarily turned the river orange. The long term effects on the 126 mile-long waterway that flows south from Colorado’s San Juan Mountains to Farmington, New Mexico where it joins with the San Juan River, are yet to be discovered.

The incident is an unfortunate setback for the EPA who had recently begun cleanup efforts in Colorado’s Silverton area where the spill occurred. The Washington Post detailed the area’s rich gold mining history in an article published earlier this week. It is essential reading that also provides important historical context about the area’s environmental problems, both natural and man-made.

Normally, the EPA is brought in to investigate such spills and lead remediation efforts. And, in fact, the EPA has had a presence in Silverton since the 1990s, when attempts were first made to hold the mining companies identified as responsible parties accountable for the area’s historic water contamination problems.

The EPA will be held accountable, too, for its new and unexpected role as polluter in the area. The wastewater its workers accidentally released while attempting to clean up the long-abandoned Gold King Mine was contaminated with arsenic, mercury, and heavy metals like lead. More information about this mine can be found in The New York Times’ “Environmental Agency Uncorks Its Own Toxic Water Spill at Colorado Mine” article.

This unfortunate incident brings to light many of the historical environmental issues that stem from polluted industrial sites throughout the country. In this case, though, there is a clearly identifiable responsible party. EPA Administrator Gina McCarthy apologized for the incident earlier this week. Though this hasn’t done much to quell public outrage or growing criticism over its slow response time, it should be noted that trying to identify responsible and potentially responsible parties (PRPs) normally takes years, if not decades.

Last week’s incident isn’t the first and won’t be the last toxic spill to contaminate our waterways. We should know. Over the years, Taylor & Hammel researchers have completed many projects related to spills of a similar nature, including an EPA designated Superfund site in the northeast.

Our historical research expertise is often a critical component that helps our legal clients build their environmental and toxic tort cases. In addition to identifying PRPs, we’re typically asked to unearth federal, state, and local records that detail the extent of each PRPs involvement and capture volumetric information. We synthesize this information and compile comprehensive environmental site histories from it.

To learn more about the research services we provide to our legal clientele involved in cleanup and remedial efforts related to toxic spills, read our previous blog post titled “Finding Evidence: Research Tactics for Environmental Law & Toxic Torts.”


The Needle in the Haystack

Given our extensive knowledge of federal, state, and local records collections, law firms and businesses often come to us in search of historical documentation that will support their cases or tell their unique stories. But when we take on projects, we never know just how much documentation we’ll discover. Sometimes it’s a lot – enough to fill up several Bankers Boxes. Other times, it’s not so much, and only a file folder or two is required. Recently, we unearthed a handful of documents for an environmental case, though we had combed through many relevant collections at federal repositories in the Washington, D.C. area. This was a perfect example of finding the proverbial needle in the haystack, where one document (out of only the aforementioned handful) proved invaluable to our client.

The law firm that requested our historical research services was representing a private company that has owned and operated resort facilities on the West coast for almost 125 years. During World War II, the company leased land to various branches of the U.S. military for training and other purposes. Between the years 1942 and 1945, 1,500 acres were leased to the U.S. Coast Guard (USCG), which established a training base on a fraction of this acreage. This small piece of the property’s history became important when a state agency brought a lawsuit against the private company, requesting further investigation and subsequent clean-up efforts into a solid waste disposal site on the land. The agency had found hazardous waste –including lead, copper, and zinc — in an area that had over the years been referred to as the “Coast Guard dump.” Therefore, the company wanted to know if the USCG did in fact contribute to the disposal site or “dump” during its time on the property.

Previous attempts by an environmental consulting firm to answer this question had been unsuccessful, primarily because the dump area was quite small and was not part of any formal waste site disposal operation. It appeared that no evidence existed to show whether or not the Coast Guard contributed to the dump in question. However, Taylor & Hammel was able to locate one key document: a 1943 Coast Guard report buried within USCG correspondence files held at the Washington, D.C., branch of the National Archives and Records Administration (NARA). This report indicated that garbage from the Coast Guard’s base was disposed of in an “open pit ½ mile from camp.” The report further stipulated that the base’s sanitation went through the “sewer system to the sea” and also included a map detailing the layout of the base. Unfortunately, the dump or “open pit” was not depicted on the map.

January 6, 1943 Map (Part 2 of 2)_edited(1)

Among other potentially useful documents we located for the client were two aerial photographs from a regional NARA facility on the West coast. These 1943 photos were located in the U.S. Coast Guard Central Subject Files and they capture the area of interest. Unfortunately, it is unclear whether the area was being used as a dump at the time.

Area of Interest to Client (Small)

While there was admittedly little information gleaned from historical records available at repositories like NARA or the U.S. Coast Guard Historian’s Office, the 1943 Coast Guard report provided the welcomed evidence our client needed for their environmental case because it connected the Coast Guard to the hazardous solid waste disposal site or dump. Who knows? There could be more documentation out there in other record collections that were beyond our initial scope of work, which could also prove useful to the client as they build their case. As always, we informed our client of such potential collections in our detailed research summary delivered upon completion of the project.

T&H Case Study: Reconstructing the History of a City Block

Much of the work we do in support of environmental law and toxic tort cases involves compiling comprehensive site histories. We work with our clients to come up with cost-efficient research strategies to compile these site histories, which help answer their most pressing environmental or historical questions. We’ve broadly discussed this type of work before in relation to chemical releases into local waterways. Today, we’d like to take the opportunity to discuss a specific case in which we reconstructed the history of an entire city block.

The client, who is in the oil and gas industry, requested our services to uncover the historical use of a city block on which they owned property for more than 100 years. The client was interested in learning about their predecessor’s tenureship as well as their own. The client operated a bulk plant for a large portion of their tenureship. In the early 2000s — years after the plant had ceased operations — the city found “free product” or standing oil on the property. Because of this discovery, the client wanted to know how their site changed over time as well as learn who owned or occupied other lots on the block. This information could help determine if there were other potentially responsible parties (PRPs) that could have caused or contributed to the source of the problem identified by the city and also share responsibility for the required cleanup.

We implemented a three-step research strategy to uncover the facts our client was after. First, we focused on gaining an understanding of the client’s specific site as well as the entire city block in question. As is often the case when compiling site histories, we began by reviewing land ownership maps available at federal repositories in the D.C. area. Maps such as those produced by Sanborn Map Company, which created maps for fire insurance liability, can visually show how the footprint of an entity expanded or contracted over time. Figure B below provides a bird’s-eye view of the city block in question from 1893, which was one year after our client established its presence on the block. Figure T shows the block as it looked over a half a century later and depicts and labels gasoline and oil storage tanks on the property. Clearly, these maps capture detectable historical changes. In the late 1800s, the block was divided into many small parcels, but by the late 1960s the client occupied the block in its entirety.*


Figure B (1897)

Figure B (1893): From Real Estate Plat-Book of Washington, District of Columbia. Vol. 2, by Griffith M. Hopkins, Published in 1893


Figure T (1967) Resized

Figure T (1967): From Baist’s Real Estate Atlas of Surveys of Washington, District of Columbia, Volume 2, by G.W. Baist, Published in 1967

Land ownership maps only provide one piece of the puzzle, however, and do not show completely accurate changes to properties or city blocks. This is because these maps are not produced on a yearly basis and because some owners do not provide map companies with access to their property. Therefore, we then had to delve into a variety of electronic databases to fill in the existing informational gaps. We mined databases like ProQuest Historical Newspapers and WorldCat to find relevant documentation related to property acquisitions, construction projects, operations and activities, court cases, fires, and other notable events of interest that took place within the city block during the period of interest to the client. For example, we learned that in 1950 an empty 15,000-gallon gasoline tank exploded on the client’s site while five men were cleaning it. The tank was one of several that were going to be moved to another plant within the D.C. area owned by the client.

Informational gaps were further filled in by reviewing city directories and land, deed, and building permit records collections available at the D.C. Archives and Office of Tax & Revenue (among other city agencies and repositories). These records indicated that the client’s footprint expanded in the early 1900s when it acquired the title to a portion of the block that had formerly been a brick and stone yard. By 1917, the client owned all of the property on the city block. Over the next several decades, above and underground oil storage tanks were constructed to house various petroleum products. One building permit from the late 1920s indicated that fourteen underground storage tanks were built that held a combined total of 300,000 gallons of gasoline. Another permit from the early 1930s indicated that eleven storage tanks were to be built that would hold more than 63,000 gallons of gasoline. Some of these tanks were later removed, and by 1960 the client’s bulk plant operations had ceased. In the 1970s, the client began selling off portions of their property, and by the early 1980s only operated a service station on a small section of the property they retained. Oil and automobile companies as well as a fast food restaurant were some of the entities that eventually operated on these other sections of the block. Unfortunately, there were no maps produced by Sanborn Map Company for the Washington, D.C., area in the 1970s, but we were able to provide the client with aerial photographs of the city block such as Figure V shown below.

Figure V (1975)

Figure V (1975): From Aerial Photographs of the National Capital Planning Commission, Aerial Photographs of Washington, D.C., RG 328, National Archives

Using all of this documentation found from the disparate sources housed in repositories throughout the D.C. area, we were able to compile a comprehensive historical summary of our client’s site that met their initial goals for the project. This descriptive and visual chronological tool allowed the client to understand how the city block and their particular presence on it evolved over time, which would help them address necessary cleanup efforts requested by the city. The client was also informed of other PRPs (including predecessors and successors) that were of interest to them. We suggested a number of additional research avenues the client could proceed with to further understand the role of these entities in the research report we delivered to them.

*Identifying information about the site location and identifying client information has been removed from the maps and photograph featured.