The Complexities and Responses of Superfund Investigations
The liability scheme created in the Comprehensive Environmental Response, Compensation and Liability Act. 42 USC § § 9601 et seq, (CERCLA or Superfund) and its numerous state law counterparts has created a demand for experienced environmental investigators. CERCLA’s policy of encouraging private cost recovery actions and contribution actions by potentially responsible parties (PRPs) requires the identification of other PRPs for the prosecution of such actions. Because activities that occurred at any given Superfund site can vary widely, the process of finding and pursuing other PRPs is not always obvious. Additionally, that process may not yield expected benefits, and could even have decidedly negative consequences, if ethical and evidentiary aspects of one’s investigations are not adequately addressed. These potential pitfalls for PRPs pursuing other parties can be avoided through the use of experienced investigators and environmental counsel familiar with the legal and practical constraints on investigations. As more and more companies have become acquainted with CERCLA by their identification as a PRP, the ranks of those who have retained private investigators to aid them in their search for other PRPs has grown steadily. Although cases dealing with such investigations are few, some guidelines can be drawn from these cases and other non-environmental cases.
One of the first problems encountered with respect to the typical Superfund site is the length of time that has elapsed since activities occurred which supposedly contributed to an environmental problem. These can be anywhere from a few years to a half century in the case of activities that occurred during World War II. The oldest mining sites on the National Priority List (NPL) of Superfund sites have required PRP searches concerning activity which occurred over 100 years ago! Of course, the length of time that has elapsed since the activities occurred at any given site will affect the availability of potential witnesses and records documenting activities at the site. These time factors will affect the work of an investigator in seeking information potentially useful to a PRP-client.
Additionally, the nature of a PRP’s activities at any given site will be important for the investigator and counsel to understand. In the case of contamination at a current or former manufacturing or industrial facility, some knowledge of the manufacturing and industrial processes employed at the site will be required in order to understand how various activities might have contributed to an environmental condition requiring remediation. The same goes for mining and extractive industries, including oil and gas production, refining and distribution, surface and subsurface mining, mineral beneficiation and smelting. Additionally, the types of waste generated and the rates of generation will be important bits of information to be developed through focused investigation.
Like any competent private investigator, an experienced environmental investigator should have the capability to gather both documentary and testimonial information, some of which must be admissible as evidence, primarily through reliance on sound interviewing and research skills. These skills, coupled with a knowledge of the unique aspects of hazardous waste cases, such as common disposal practices and types of records kept during various periods of a company’s operations, will result in the execution of a useful PRP identification effort for the client. Additionally, an ability to locate and verify the assets of a suspected PRP is typically required, for what good is the identification of a judgment-proof PRP?
A fruitful type of inquiry for any environmental investigator is interviewing current and former employees of a suspected PRP. While a private investigator is not constrained by the rules of professional conduct governing attorneys, even investigations directed by clients without their attorney’s involvement have been held to the ethical standards of the legal profession.
By keeping the above-noted practical and legal considerations in mind, experienced and novice PRPs may reap the benefits of environmental investigation as an important adjunct to their hazardous waste site activities. * Mr Kazmier is president of Orion Management International, a private investigations firm with environmental investigations expertise located in Evergreen, Colorado. Mr. Jacus is a partner in the Denver law firm of Davis, Graham & Stubbs, L.L.C. and editor-in-chief of Hazardous Waste Strategies Update.
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