The lawsuit will test pledges by President Barack Obama and Attorney General Eric Holder of a new openness and presumption of disclosure in administering the Freedom of Information Act.
PEER is seeking the release of a 2006 report by EPA Office of Inspector General investigator Cory Rumple concerning the safety and completeness of EPA's removal of vermiculite contaminated with deadly asbestos from the town of Libby.
"The report is a matter of public concern because it contains not only facts and assessments of the status of the Libby cleanup, but also policy and action recommendations by Cory Rumple regarding criminal acts and investigations relating to the mishandling of the Libby cleanup," the lawsuit states.
Vermiculite mining in and near the town of Libby, Montana began in the 1920s and was continued by the W.R. Grace Company from 1963 until 1990. The vermiculite ore mined in Libby was contaminated with tremolite asbestos.
The report sought by PEER assesses the public health implications of the manner in which EPA conducted the clean-up in Libby, where an estimated 200 people have already died and hundreds more sickened by exposure to this form of asbestos, as well as the culpability of responsible EPA officials.
Asbestos waste in bags so that it cannot contaminate the air (Photo courtesy ATSDR)
During the past two years, PEER has repeatedly requested the document's release. In 2007, EPA contended that the report could not be disclosed because it was part of an active law enforcement investigation.
In 2008, the agency dropped that rationale but asserted that even the factual portions of the report, as opposed to Agent's Rumple's conclusions, were so sensitive that a redacted report could not be released.
In a July 28, 2008 letter to PEER, Associate Deputy Inspector General Mark Bialek wrote that releasing only the "summary of information and concerns of various EPA employees and private individuals on technical/scientific issues regarding EPA's residential cleanup program in Libby" reported by Rumple would still reveal the agency's "deliberative process."
Following President Obama's January 21, 2009 Freedom of Information Act directive that "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," PEER again requested the Rumple report.
After EPA indicated that it would take six months to make even an initial determination as to whether to release it, far longer than the 20 working day FOIA deadline, PEER filed a formal appeal.
After that appeal drew no response, PEER today filed a FOIA lawsuit in the U.S. District Court for the District of Columbia.
"The people in Libby deserve to know whether EPA kept its promises to them and performed the removal in the most protective fashion," said PEER Staff Counsel Christine Erickson, who prepared the complaint.
EPA says on its website that later this year the agency will transition from emergency Removal Activity to the Remedial Process in Libby.
"There is no record of EPA conducting a risk assessment on its own cleanup plan; the Rumple report explores the consequences of that omission," Erickson said.
On March 19, 2009, Attorney General Holder issued a directive that the Justice Department will defend FOIA lawsuits only when "disclosure would harm an interest protected by one of the statutory exemptions." The PEER suit will provide an early test on the scope of this new pro-disclosure policy.
As of April of 2009, EPA says it has "safely and thoroughly" removed over 600,000 cubic yards of asbestos-contaminated waste from major source areas and structures. Contaminated soils are transported to the Grace Mine site and contaminated construction debris is placed in a specially designed landfill cell. These disposal sites are secured and will remain off-limits for human contact.
Recent cleanup efforts have focused on residences and businesses. By the end of the 2008 construction season, EPA had cleaned up over 1,100 residences and commercial properties.
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