The Environmental Protection Agency has agreed to stop destroying records Union Pacific requested about lead contamination in Omaha, but the railroad worries the federal agency won’t protect all relevant information.
August 25, 2010
By The Associated Press
OMAHA, Neb. — Documents filed yesterday show Union Pacific Corp. and the EPA agreed on most aspects of a preliminary injunction, but the railroad wants a federal judge to order a broad definition of what kinds of records should be preserved.
The EPA and Union Pacific have been trying for years to settle who should pay more than $200 million to clean up 5,600 lead-contaminated properties in Omaha. The EPA and the railroad disagree about the contamination’s source, and railroad officials hope the records they are requesting will help prove that Union Pacific isn’t responsible for the contamination.
Union Pacific sued in June after obtaining e-mails in which EPA officials discussed deleting records. Union Pacific lawyers say in court documents that they worry the EPA isn’t doing enough to protect records because the agency is interpreting the court orders not to destroy anything very narrowly.
EPA officials were not available yesterday afternoon to discuss the case.
In Union Pacific’s lawsuit, the railroad cited several e-mails in which an EPA supervisor encourages employees to delete messages so they won’t be subject to release as public records under the Freedom of Information Act. The document destruction may go back at least to 2004.
In one e-mail the lawsuit mentions, the EPA supervisor overseeing the Omaha lead site, Robert Feild, wrote: “It will be critical that every i is dotted and t crossed since we are under a microscope. please delete this message after reading — we receive regular FOIA requests from Union Pacific for our e-mails. thanks, Bob F.”
Union Pacific said the EPA responded slowly to the records requests it submitted in 2002, 2003, 2004 and 2009. The railroad said it found the e-mails about destroying documents buried in more than 1.1 million pages of records the EPA did provide, but UP is not sure whether the agency provided everything requested.
The EPA and Union Pacific agreed to the basic outline of the order requiring the agency to preserve its records, including hiring an expert to review the agency records at issue. But the two sides disagree about several issues, including which expert should be hired and which records he or she should review.
Union Pacific spokesman Tom Lange said the railroad believes the record-protection order should cover all records related to its pending Freedom of Information Act requests.
But the EPA has argued that the review conducted by the expert the court chooses should be restricted to the e-mails Union Pacific identified in its original complaint.
“The expert should not be sent on an undefined ‘fishing expedition’ of agency records which ventures beyond the scope of the alleged destruction emails described in plaintiff’s complaint,” assistant U.S. Attorney Lynette Wager said in court documents.
U.S. District Judge Laurie Smith Camp will rule later on the issues Union Pacific and the EPA haven’t agreed on.
Much of eastern Omaha has been designated a superfund site by the EPA because of the extent of lead contamination, which can endanger children’s health, causing decreased intelligence, slow growth and behavior problems. The EPA has been working to clean up the site for several years.
The EPA has already removed and replaced the soil at nearly 6,000 properties in Omaha, and the agency wants to spend roughly $237 million replacing the soil at 10,000 more yards. The total cost of the EPA cleanup is likely to exceed $400 million, according to agency estimates.
Union Pacific has said it shouldn’t be held responsible for the lead contamination, because it only leased property to a smelting company, Asarco, and that lease ended in 1946 when Asarco bought the land and continued operating a smelter there until it closed in 1997.
Union Pacific also argues that lead-based house paint caused the contamination because nearly 80% of the homes in the area were built before 1950, when lead paint was common.