Not Just on Marco Island - Again EPA Refuses to Release Documents
Secret EPA Report on Libby Clean-Up Sparks Lawsuit
Early Test of Obama/Holder Doctrine on Freedom of Information Act Openness
WASHINGTON - April 2, 2010 - The U.S. Environmental Protection Agency is improperly withholding a long-sought report on whether the agency's clean-up of Libby, Montana is adequate to protect the residents of that beleaguered community, according to a lawsuit filed today by Public Employees for Environmental Responsibility (PEER). The lawsuit will test pledges by President Obama and Attorney General 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 (IG) investigator Cory Rumple concerning the safety and completeness of EPA's removal of deadly vermiculite from the town of Libby. The report 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 virulent form of asbestos, as well as the culpability of responsible EPA officials.
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 IG 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 (FOIA) 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," stated PEER Staff Counsel Christine Erickson, who prepared the complaint, noting that according its website later this year "EPA 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 clean-up plan; the Rumple report explores the consequences of that omission."
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.
"EPA's rationale for keeping this report from the public will not withstand scrutiny," Erickson concluded.