Since the enactment of the Superfund Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980,one of the most fruitful areas for public history has been in the field of environmental research. With the price of repairing long-term ecological damage often reaching astounding levels, historians have become essential in helping to assess the extent of environmental problems and in resolving the more difficult question of determining who will eventually pay the cleanup costs. Typically, this research has involved painstaking efforts in local records to uncover the activities of all parties involved with a particular toxic waste site.

In recent years, the question of the federal government's responsibility for environmental contamination at industrial facilities has opened up a whole new field for the public historian. While federal liability has been an issue since the earliest environmental legislation, an increasing number of cases have focused on the role of government agencies in directing industrial mobilization during the Second World War. Most famously, in 1992 the Pennsylvania Eastern District Court rendered a landmark decision in FMC Corp. v. United States Department of Commerce, finding the U.S. government accountable for pollution produced by a privately owned rayon plant from 1942 to 1948. In dozens of similar cases, attorneys have drawn upon historical research in federal records to determine if, and to what extent, government agencies can be held responsible for hazardous wastes created at industrial sites under their control. Given the government's extensive powers during World War II (and to a lesser extent in World War I, Korea, and Vietnam), the potential implications of this trend are staggering.

The Superfund Act was designed to prevent legal disputes from hampering remediation work at the nation's worst toxic waste sites. In theory, it allows the Environmental Protection Agency (EPA) to begin restoring a badly polluted area before the courts have decided who is ultimately to pay for the cleanup. As an initial step in this process, the EPA identifies a list of potentially responsible parties (PRPs). A PRP is broadly defined under section 107 of CERCLA as anyone who "owned," "generated," or "disposed" of hazardous materials. Thus, PRPs can include past and present owners, any organization that exercised some kind of control over the site, and any company that sent wastes to be dumped there. Understandably, those named as PRPs have often sought to defray their potentially huge costs by trying to pass as much of their liability as possible onto other parties, including in many cases the government itself.

A typical Superfund site, therefore, produces an intricately interwoven collection of suits and countersuits/ and historical evidence can be instrumental in resolving this litigation. Most critically, documenting the history of those connected to the site is vital for determining relative levels of legal responsibility. Liability in these cases is seldom a question of absolute guilt or innocence but a matter of assigning partial accountability, depending upon how closely each party was involved with the site. Therefore, most cases hinge on the ability to build a comprehensive picture of government activities during the war to determine the extent of its responsibility for present pollution problems. However, since the price of environmental remediation at a Superfund site can reach as high as $500 million, even partial liability potentially represents huge costs.

CERCLA Liability Research

While environmental cases are notoriously complex, litigators generally rely upon three basic arguments in cases involving government CERCLA liability for the World War II period. In the most straightforward instance, government agencies can be held accountable for cleanup costs if they directly owned a site at some point. More broadly, some attorneys have argued that widespread government control and regulation of almost all aspects of industrial activity during World War II extends its liability for environmental contamination/ even if the government never actually owned a particular site. Finally, some companies identified as PRPs have tried to pass costs back to the government under the terms of special procurement contracts used during the war.

The litigation on a particular site typically follows a combination of these three strategies. In each case federal records are critical for determining the extent of government responsibility. Therefore, the search for pertinent documents usually requires negotiating the labyrinthine National Archives and Records Administration (NARA) system. In general, records from the World War IT era have been transferred to the National Archives and are available for public research (with the important exception of security-classified records, which cannot be examined without special arrangements). However, files from a particular agency may be housed at the main NARA repositories in Washington, D.C., or they may be deposited at one of the twelve regional field branches or nine presidential libraries.1 Furthermore, some useful materials remain in the control of government agencies, which can restrict access unless the agencies are forced to open up records by a Freedom of Information Act request.

If the federal government owned a site during the Second World War, then its responsibility for environmental contamination is clearly spelled out by CERCLA. The most obvious examples of direct government liability involve the numerous military bases, airfields, and naval yards identified as major contributors to local environmental problems. Less widely known is the government's direct involvement in the nation's industrial mobilization. Government agencies owned, funded, and administered more than 2,000 contractor-operated facilities during the war, some of them in such environmentally hazardous fields as nuclear processing, petroleum refining, heavy metals mining and smelting, synthetic rubber production, and explosives manufacture. Scattered throughout the country, the sites represent a huge potential liability-of the several hundred Superfund sites currently identified by the EPA, dozens are connected to industrial facilities once owned by the federal government.2

Research in federal archives provides a wealth of vital information on government activities at these facilities. At the most basic level, the records describe industrial operations and procedures used during the war. For example, construction reports and plant engineering files can include information on underground storage tanks, as well as details about the use and eventual disposal of industrial solvents or other toxic chemicals. Even more important from a liability standpoint, federal records such as industrial hygiene reports and real estate case files may also reveal whether government officials realized that toxic materials could cause future health problems, even if they might not have recognized or understood all of the long-term environmental hazards. Using these documents, historians can work with attorneys and environmental engineers to determine how many present-day environmental problems, if any, can be traced to the period of government ownership.

It is far more difficult to show federal responsibility for environmental contamination at privately owned sites. The general argument suggests that governmental control over industry was so pervasive that, in some cases at least, the government can be deemed liable as a site operator under a broad interpretation of CERCLA. In fact, the War Production Board, the agency primarily responsible for coordinating nationwide industrial output, did have extraordinary powers to regulate all phases of manufacturing, from the initial use of raw materials to the final disposal of waste products. Some claims have contended that the combination of government constraints and constant pressure to maximize output inevitably forced factories to operate in ways that produced more toxic wastes.3

Of course, not all industries were subjected to such close scrutiny, and historians have been crucial in unraveling the enormously complex web of wartime regulations to judge the extent and nature of government control at specific plants. Although War Production Board files proved critical in the FMC case cited above, there were numerous other government agencies responsible for specific industries, and some had special wartime regulatory powers. The great difficulty lies in sifting through this mass of records to find the specific details needed to determine federal liability under CERCLA. Government records are rarely organized so that materials on a particular facility can be located easily, and the types of documentation vary greatly because the degree of government oversight differed from industry to industry and from site to site. Ascertaining federal responsibility at privately owned sites requires gathering disparate threads from numerous files and weaving these scattered pieces of evidence together to form an accurate description of the government's role.

The issue of government liability under war-time contract provisions is even more tenuous. At the same time, it potentially involves almost every facility that had a government contract during the war. Unlike the cases above, a contractual approach does not directly hinge on the degree of government control over a facility. Rather, companies that have accepted responsibility for environmental contamination have tried to claim back their cleanup costs under the terms of special contracts adopted during the war to encourage industrial output. Under these contracts, government procurement agencies used cost-plus-fixed-fee contracts to guarantee their suppliers a fixed profit, and several industries had comprehensive government purchase agreements to maximize production of critic materials. The argument, then, is that the price of repairing present-day environmental problems should be counted as part of wartime production costs, and should therefore, be reimbursable under these special contract provisions.

Research for the government-contract approach involves two separate problems. The first major difficulty is finding the contracts themselves. Unfortunately, contracts are generally not kept as permanent records by the National Archives; however, it is possible to locate certain kinds of specialized records, such as research-related agreements retained to provide a record of technical advancements.4 It is also important to collect intern memorandums, policy papers, and other records that explain the legal background government contract procedures during the war. This documentation helps settle the difficult question of determining how these special reimbursement clauses operated and whether the cleanup of present-day environmental problems falls under the same kinds of provisions.

Public History and CERCLA

This brief overview suggests that the federal government potentially faces a huge liability under CERCLA for its involvement in America's wartime industrial mobilization. As the number of government liability suits increases, there will be a corresponding demand for historians capable of conducting the specialized research needed to resolve these complex legal and historical issues. However, there are several fund mental differences that separate environmental litigation cases in general, and government liability suits in particular, from other kinds of historical investigations. Both the historian and the client need to be aware of these differences so that they will know what to expect from one another when working on these projects.

Historians have skills that make them uniquely qualified to study the question of government CERCLA liability. At the most basic level, this type of research requires an exhaustive knowledge of the often bewilderingly complex activities of government wartime agencies. Understanding the overlapping responsibilities and characteristic operational style of each agency is critical if one is to avoid drowning in the vast sea of documents held by the National Archives system. It is all too easy to miss small but vital collections hidden in some obscure group of records, or to waste days going through cumbersome general correspondence files when there are far easier ways to gather the same information. Historical background is not something that can be picked up after a few days at the National Archives, hut it is vital if the research is to be done thoroughly and efficiently.

Furthermore, unlike paralegals, historians are usually trained to follow a multidisciplinary approach to research. This is critical since government liability cases are a combination of historical analysis, legal argument, and environmental science. Moreover, only rarely does the document search produce a single "smoking gun" memo that absolutely proves or disproves government culpability for environmental contamination. Rather, determining levels of government liability usually requires a slow and painstaking effort to piece together scraps of evidence taken from a wide variety of sources. Environmental researchers must be able to collect and interpret maps, aerial photographs, financial statements, industrial hygiene studies, and engineering reports in addition to the usual memos and letters. The value of historical training comes in the ability to see the connections between these disparate pieces of documentary evidence and to recognize the new avenues of inquiry suggested by them.

Historians are not only exceptionally qualified to carry out this research, but they are also uniquely capable of analyzing the collected information cogently and coherently. Historians usually produce a variety of written synopses to interpret and explain the thousands of documents produced in a typical government liability case. These might include detailed site chronologies, broader historical reports documenting the government's role, or specialized studies on important aspects of the case, such as descriptions of industrial processes or the usage of particular chemicals. Furthermore, historians may also be asked to provide expert witness testimony to explain their findings intelligibly to a lay audience. These products require the combination of a meticulous eye for detail and a talent for abstract summation, which lie at the heart of historical skill.

Clearly, historical training is an invaluable advantage when investigating government CERCLA liability. However, these projects have several unique characteristics that separate them from more traditional academic research. In part, this stems from the nature of the research itself-if historians typically collect pieces of evidence in order to make a general statement about the past, then government liability cases work in the opposite direction. The aim is to take what one generally knows about the activities of government agencies during the war ·and then try to determine if this applies to the specific facility in question.

More important, the special nature of the historian-client relationship in environmental litigation cases raises two critical issues. The first is one of economics. Academic historians generally enjoy the luxury of being able to take as long as they need in order to resolve a question; public historians typically cannot do so. Instead, a client will usually establish a maximum budget for conducting the government liability investigation based on information supplied by the historian. Historians then have to make difficult research decisions based on the expected value of what they hope to find compared to the cost of finding it. This in turn requires that they be completely familiar with the intricate legal issues pertaining to government liability questions. The underlying lesson is that a close communication with the client is vital at all phases of the research.

The second critical issue relates to the linked questions of confidentiality and advocacy. Historians involved with government liability projects are usually forbidden from discussing the details of their cases with others, and the results of their research are typically treated as a confidential work product. Clients invariably expect, and often make an express point of demanding, absolute secrecy from those working for them. Given the stakes involved, it would be surprising if they failed to do so, and historians must be absolutely prepared to respect their clients' concerns in this matter.

But this is not to say that historians can be expected to act as advocates for their clients. Whether choosing which collections to examine, analyzing documentary evidence, or providing expert witness testimony, historians should not be swayed by the general interests of their clients. Professional standards dictate that the historian's job is to report objectively on all findings, not just those that happen to support a particular position. Fortunately, in my experience most clients respect these standards and insist upon receiving all gathered information, whether or not it confirms the allegations of government liability.5

Conclusion

With the ever-spiraling costs of environmental remediation projects, government CERCLA liability research is likely to remain an important growth area for public history. The most obvious potential client is the government itself-the EPA, the Department of Justice, the Department of Defense, and the Department of Commerce have all been involved in government liability cases. Private industries and insurance companies also have an important stake in settling these questions. In addition to working directly for public history firms, historians could also find employment in law firms, with environmental engineering companies, or as independent contractors.

The legal arguments outlined above may appear somewhat ambitious. In fact, with a few important exceptions, most have yet to be accepted by the courts. But they have yet to extensively used in the lengthy negotiations that precede final settlement in Superfund cases. Furthermore, attorneys have also be begun to follow similar lines of reasoning in examining the government's role in other national conflicts and in seeking government help in cleaning polluted facilities that have not yet been formally designated as Superfund sites.

Clearly, the original CERCLA legislation did not anticipate that the federal government might be held accountable for having regulated industrial production during national emergencies. Many historians may find this idea troubling, especially when their research is being used to implicate the government in the staggering costs of repairing America's environmental damage. Ultimately, of course, the courts will decide the validity of these arrangements. But until the question of government liability is clarified by judicial decision, or until Congress changes CERCLA to reflect the, concerns, historians will continue to playa vital part in determining the extent of government liability in these cases.

Notes

1. For a more detailed, if slightly out of date, description of NARA holdings, see National Archives and Records Administration, Guide to the National Archives of the United Slates (1987).

2. While I am not aware of any published study that has examined this question directly, an idea of potential extent of government liability can be gained by comparing the current Superfund National Priorities List (NPL) with the list of World War II government-owned facilities in the Defense Plant Corporation records held by the National Archive,

3. For a legal overview of government liability for its regulatory role in World War II, see Van S. Katzman, "The Waste of War: Government CERCLA Liability at World War II Facilities" in Virginia Law Review 79 (1993): 1191-1233.

4. See Tab Lewis, "Records Pertaining to Contracts and the Activities of Firms in the National Archives: An Overview," Journal of Law and Economics 34 (October 1991): 453-73.

5. For a further discussion of the general issue of advocacy and confidentiality, see Martin Reuss, Shelly Bookspan, Craig Colten, and Michael McMahon, "Environmental History and Public Historians," American Society for Environmental History News 2 (September 1991): 1-3; and Martin V. Melosi, "Public History and the Environment," Public Historian 15 (fall 1993): 11-20.