The Progressive


A project of Common Dreams

For Immediate Release

Luke Eshleman (202) 265-7337

Secret EPA Report on Libby Clean-Up Sparks Lawsuit

Early Test of Obama/Holder Doctrine on Freedom of Information Act Openness


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

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.

See the EPA basis for withholding the Rumple report on Libby

Read the PEER complaint

Look at the status of the EPA Libby clean-up

President Obama's Executive Memorandum on FOIA

View the Holder memo

Public Employees for Environmental Responsibility (PEER) is a national alliance of local state and federal resource professionals. PEER's environmental work is solely directed by the needs of its members. As a consequence, we have the distinct honor of serving resource professionals who daily cast profiles in courage in cubicles across the country.