Judge Rules With EPA in FOIA Rebuff

     WASHINGTON (CN) – The Environmental Protection Agency does not have documents a law firm sought in a FOIA request, nor is it obligated to obtain them, a federal judge ruled.
     Plaintiff Beveridge & Diamond helps “clients around the world resolve environmental, natural resource, project development and sustainability issues relating to their facilities, products and operations,” according to the firm’s website.
     The law firm asked the EPA for data on the physical affects experienced by people exposed to a highly potent form of asbestos found at a vermiculite mine in Libby, Mont.
     Beveridge filed a FOIA request on June 17, 2013, seeking “data and other documents related to follow-up work and updates to a Marysville, Ohio cohort that was the subject of previous scientific studies,” according to its 2014 federal lawsuit in the District of Columbia.
     “The follow-up work and updates were intended to further the understanding of exposure to Libby amphibole asbestos and resulting health outcomes. The FOIA request seeks records that, based on EPA’s descriptions, are directly relevant to portions of an EPA toxicological assessment regarding Libby amphibole asbestos that is nearing completion,” according to the lawsuit.
     The EPA handed over about 71 pages of unredacted documents and some redacted contracts, but withheld the “most significant data in their entirety:” the high resolution computed tomography (HRCT) data and the pulmonary function testing (PFT) data.
     A subsequent appeal was denied, the EPA claiming the HRCT data was exempt from disclosure and that it “does not possess, nor has access to, the pulmonary function data.”
     Beveridge filed a motion for summary judgment on May 12, 2014, claiming the EPA violated the FOIA because there are no exemptions that apply to the HRCT data and that the PFT data is an “agency record” over which the EPA has constructive control.
     The EPA filed a cross-motion for summary judgment, saying it released the HRCT data to Beveridge and that PFT data is not an agency record under FOIA because the agency doesn’t have it.
     U.S. District Judge Emmet Sullivan agreed with the EPA.
     “Because the court finds that the EPA did not create or obtain the PFT data, direct a third party to create or obtain the PFT data, or have a legal duty under the FOIA to seek to obtain records of the PFT data, the PFT data is not an agency record under FOIA,” Sullivan wrote in an 18-page opinion. “Even assuming, arguendo, that the court found that the EPA created or obtained the PFT data, the EPA did not … control the PFT data at the time the FOIA request was made.”
     The vermiculite mine is about 7 miles from Libby, a town of about 3,000 people in Montana’s northwest corner. Opened in 1923, the mine produced more than 70 percent of the world’s supply of vermiculite, which has several commercial applications, most recognizably as insulation for homes and commercial buildings.
     Mining operations eventually ceased, but only after the production of millions of tons of material that was determined to contain a contaminant, found in the form of tremolite-actinolite asbestiform mineral, or Libby amphibole asbestos, which is alleged to have caused widespread sickness and disease.
     W.R. Grace and Co. acquired the mine in 1963 and is said to have provided vermiculite for use in local playgrounds, backyards, gardens, roads and sports fields, causing the asbestos material to circulate throughout the community, according to asbestos.com.
     Health workers claim that more than 400 people have died from Libby asbestos-related illnesses. Together, the mine and the town comprise the largest Superfund clean-up site in the United States. As of 2011 it has cost more than $370 million to clean up.
     In 1999, the Seattle-Post Intelligencer documented the town’s plight in a story headlined, “Uncivil Action: A Town Left to Die,” which gained national attention.
     That year the EPA initiated an emergency response action to address exposure from past mining and its transportation to a processing facility in Marysville, Ohio that produced lawn care products.
     Then, in 2007, High Plains Films produced the movie “Libby, Montana,” which claims that the EPA described the Libby mine as the worst case of industrial poisoning of a whole community in American history.
     The EPA is in the process of completing its toxicological review, which will be used to support the continuing cleanup of the Libby site.

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