Trial lawyers and litigators routinely devote substantial time and resources investigating their cases. This is true in traffic accident cases, products liability matters, contract disputes, insurance coverage battles and most especially in environmental matters. Unfortunately, the American Rule specifies that litigants are generally prohibited from recovering attorney’s fees in identifying and locating defendants, unless authorized by statute.
However, in environmental matters, the U.S. Supreme Court in Key Tronic v. U.S.1, held that attorney fees are recoverable where legal counsel and their investigators identify potentially responsible parties (PRPs) or defendants. Since identification of other defendants or PRPs can spread the costs among additional parties, clients have a vested interest in finding these other parties. The Key Tronic2 case means that costs associated with the environmental lawyer’s investigative efforts are recoverable from other defendants.
However, the Supreme Court has given this option to clients precisely because it is so difficult to track down other PRPs in certain types of environmental matters. How does environmental legal counsel conduct this search?
Use the Media for Information
For more recent environmental matters, use the media, whether it is broadcast or print. In many cases, reporters will arrive on scene to cover news worthy environmental events. They might have overhead footage from news helicopters or satellite mobile trucks, photographs of the scene, and interviews of parties involved.
Contact the On-Scene Coordinator
Second, also for recent environmental events, the county, state or federal environmental protection agency may send out a specially-trained person to help in the emergency removal phase of the case. This person is referred to as the "On-Scene Coordinator," OSC for short. The OSC routinely prepares a report akin to one prepared by an investigating police officer in a traffic accident or crime. The OSC report may also include scene records and photographs, which you may be able to access. Finally, the OSC may agree to be a fact witness for your case.
Investigate Records Maintained by the National Response Center
Next, use the government reporting requirements to your advantage. Federal and state law requires that certain environmental events be immediately reported to the National Response Center (NRC) in Washington D.C. and to state Emergency Management Agencies. When a company has an environmental event, that company must make an emergency call to the NRC. During the notification telephone call, the caller will be required to provide detailed information about the environmental event. The NRC has an excellent website3 which counsel can use to obtain this detailed information about the spill, the name of the chemical(s) released, the volume released and the name of the companies involved in the event.
FOIA Government Records
In other cases, identifying polluters and the specific conduct giving rise to environmental contamination may require historical investigation of events older than a few years. The government maintains a vast array of historical information that can be extremely helpful to the environmental lawyer. Visit the relevant county, state and federal environmental protection agency or bureau to see what information that agency may have. Once you identify the type of records you need, you will need to issue a written request to the government and cite the appropriate Freedom of Information Act Statute, either at the federal level or state level.
Issue a FOIA to Predecessors of EPA
What happens if you need records about a polluter and their business practices as far back as the 1940’s, before the federal government or state governments had environmental protection agencies? Most states publish a "Blue Book" which sets forth government agencies within a state, and the family tree of those government agencies. Often times, state Environmental Protection Agencies which were created in the early 1970’s evolved from state agencies that existed under some other name and mandate. The key is to find the predecessor agency and issue your Freedom of Information Act request to those predecessor state agencies as well. This may result in a treasure trove of additional information.
Procure Sanborn Fire Insurance Maps
For environmental events going back in time more than 100 years, the environmental lawyer should consider searching historical maps prepared by the insurance industry. These maps are referred to as Sanborn Fire Insurance maps. They were prepared for most towns and urban locations across the United States. The maps were first created in the late 1860’s. These maps provide extremely helpful information about company names, street addresses, property boundaries, and may also contain helpful information about pipelines, wells, rail lines, landfill areas and location of designated equipment or machines at a given location. The maps were also updated as the years went by, and, as a result, new owners/operators of the property can also be ascertained. These maps have been reviewed by environmental lawyers to develop some vital leads.
Investigating environmental events to find all possible PRPs or defendants can be a very challenging process but can provide the benefit of lower remediation costs and/or fines and penalties to your client. Furthermore, with the new decision in Key Tronic,4 the client should be able to recover the attorney fees associated with the defendant search. These are great results for any client involved in an environmental event.
1. Key Tronic v. U.S., 511 U.S. 809 (1994).
3. National Response Center website location: www.nrc.uscg.mil.
4. Key Tronic v. U.S., 511 U.S. 809 (1994).
Mark R. Misiorowski is the owner of The Misiorowski Law Group LLC, a boutique environmental law firm located in Naperville, IL, focusing on both state and federal environmental matters for its clients. He has practiced environmental law for over 20 years, after obtaining his J.D. from DePaul University College of Law. Mr. Misiorowski is the Chairperson of the Environmental Law Committee for DuPage County Bar Association. The views expressed herein are solely those of the author and do not represent the opinions of The Misiorowski Law Group, LLC or its clients.