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Beveridge & Diamond, P.C. v. United States Environmental Protection Agency

United States District Court, D. Columbia.

January 20, 2015

BEVERIDGE & DIAMOND, P.C., Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant

Page 200

For BEVERIDGE & DIAMOND, P.C., Plaintiff: Jayni Anita Lanham, BEVERIDGE & DIAMOND, PC, Baltimore, MD; David Austin Barker, BEVERIDGE & DIAMOND, PC, Washington, DC.

For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 201

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Plaintiff Beveridge & Diamond, P.C. (" Beveridge" ) requested information from the defendant, the Environmental Protection Agency (" EPA" ), under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. In response to Beveridge's FOIA request, the EPA released some records to Beveridge but claimed that one set of data was not in its possession, and thus not an " agency record" under FOIA. Beveridge challenges the EPA's claim that it does not possess the data. Pending before the Court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court DENIES Beveridge's motion and GRANTS the EPA's cross-motion.

I. BACKGROUND

A. Libby Amphibole Asbestos

In 1881, gold miners discovered vermiculite in Libby, Montana. See EPA's Mot. for Summ. J. (" EPA's Mot." ), ECF No. 16-2 (" McKean Decl." ) ¶ 7. Vermiculite is a silver-gold to gray-brown mineral that is flat and shiny in its natural state. Id. Between 1923 and the early 1990s, a mine near Libby produced millions of tons of vermiculite ore. See Beveridge's Mot. for Summ. J. (" Bev's Mot." ), ECF No. 9 at Ex. B. While in operation, the Libby mine may have produced more than 70 percent of the world's supply of vermiculite. See McKean Decl., ECF No. 16-2 ¶ 7. Vermiculite has been used in building insulation

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and as a soil conditioner. Id. The vermiculite from the Libby mine, however, was contaminated with a toxic form of naturally-occurring asbestos called tremolite-actinolite asbestiform mineral fibers, also known as Libby amphibole asbestos. Id.

Libby amphibole asbestos is a distinct and relatively uncommon form of asbestos. Id. It is not a commercially viable mineral, but is instead a contaminant in the vermiculite ore from the Libby mine. Id. Hundreds of former mine workers and Libby residents have been diagnosed with asbestos related disease. Id. ¶ 9. Many individuals have died from illness caused by asbestos exposure. Id.

B. Toxicological Review

The EPA initiated an emergency response action in November 1999 to address questions and concerns raised by citizens of Libby regarding possible ongoing exposures to asbestos fibers as a result of historical mining, processing, and exportation of asbestos-containing vermiculite. Id. ¶ 8. As part of its response, the EPA engaged in a number of efforts, including cleanup and related risk management activities in Libby. Id. To support future cleanup efforts and risk related activities, the EPA is in the process of conducting a Toxicological Review of Libby amphibole asbestos (" Toxicological Review" or " Toxicological Assessment" ), which will, among other things, summarize " the potential adverse health effects of Libby amphibole asbestos exposure." Id. ¶ 11. The EPA released its draft Toxicological Assessment for external review and comment in August 2011. Id.

The draft Toxicological Assessment reviews the potential hazards, both cancer and noncancer health effects, from exposure to Libby amphibole asbestos and provides quantitative information for use in risk assessments. Id. ¶ 14. Occupational epidemiology studies for two worksites where workers were exposed to Libby amphibole asbestos forms the basis of the draft Toxicological Review. Id. ¶ 13. These worksites include the mine and mill near Libby, Montana, and the vermiculite processing plant in Marysville, Ohio, which produced lawn care products using vermiculite. Id. The cohort of workers that were exposed to Libby amphibole asbestos at the plant in Marysville, Ohio, (" Marysville, Ohio Cohort" ) has served as the basis of earlier published, peer-reviewed scientific studies, which the EPA relies on in its draft Toxicological Review. Id.

The final Toxicological Review will be included on the EPA's Integrated Risk Information System (" IRIS" ) database and will be used to support the EPA's cleanup and related risk management activities at the Libby site. Id. ¶ 11. The EPA's IRIS is a " human health assessment program that evaluates information on health effects that may result from exposure to environmental contaminants." Id. ¶ 12. IRIS is used to support the EPA's regulatory activities. Id. ¶ 11. The EPA is in the processes of finalizing its Toxicological Review. Id.

C. University of Cincinnati

There have been additional efforts -- parallel to, and at times related to, the EPA's Toxicological Review -- by federal agencies to study the adverse health effects of Libby amphibole asbestos. Specifically, federal agencies have entered into the following agreements with the University of Cincinnati (" UC" ):

United States Department of Transportation (" DOT" ).

The DOT Volpe Center contracted with UC to update data on the Marysville, Ohio Cohort (" Volpe Contract" ). See Bev's Mot., ECF No. 9 at Ex. B. The Volpe Contract assigned seven tasks to be performed in two phases. Id. ...


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