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Beveridge & Diamond, P.C. v. United States Department of Health & Human Services

United States District Court, D. Columbia.

March 30, 2015

BEVERIDGE & DIAMOND, P.C., Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants

Page 231

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 DEPARTMENT OF HEALTH AND HUMAN SERVICES, CENTERS FOR DISEASE CONTROL AND PREVENTION, AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, Defendants: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 232

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Plaintiff Beveridge & Diamond, P.C. (" Beveridge" ) requested information from defendants, the United States Department of Health and Human Services (" HHS" ), Centers for Disease Control and Prevention (" CDC" ) and the Agency for Toxic Substances and Disease Registry (" ATSDR" ) (collectively, the " defendants" ), under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. In response to Beveridge's FOIA request, the defendants released some records to Beveridge but claimed that two sets of data were not in its possession, and thus not an " agency record" under FOIA. Beveridge challenges the defendants' claim that it does not possess the data.

In support of its argument, Beveridge relies heavily on the record developed in a related case before this Court -- Beveridge & Diamond, P.C. v. United States Environmental Protection Agency, 14-cv-631, 78 F.Supp.3d 199, 2015 WL 251592 (D.D.C. Jan. 20, 2015). In that case, involving the same plaintiff and substantially similar claims, this Court held that the Environmental Protection Agency (" EPA" ) did not create or obtain the data at issue in this case; therefore, the data was not an " agency record" under FOIA. Beveridge & Diamond, P.C. v. United States Environmental Protection Agency, No. 14-cv-631, 78 F.Supp.3d 199, 2015 WL 251592 at *4 (D.D.C Jan. 20, 2015). Beveridge did not appeal this Court's decision in Beveridge & Diamond, P.C. v. United States Environmental Protection Agency.

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 GRANTS the defendants' motion and DENIES Beveridge's cross-motion.

I. BACKGROUND

Because the factual record in this case is virtually identical to the related case Beveridge & Diamond, P.C. v. United States Environmental Protection Agency, and Beveridge places considerable reliance on those facts, the Court recites the background facts as found in that case. In addition, the Court supplements the factual record, when necessary, based on the pleadings in this case.

Page 233

A. Libby Amphibole Asbestos

In 1881, gold miners discovered vermiculite in Libby, Montana. Beveridge & Diamond, P.C., 2015 WL 251592 at *1. 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. Id. While in operation, the Libby mine may have produced more than 70 percent of the world's supply of vermiculite. Id. Vermiculite has been used in building insulation 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. 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. 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. 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. Occupational epidemiology studies for two worksites where workers were exposed to Libby amphibole asbestos forms the basis of the draft Toxicological Review. Id. 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. [WL ]at *2. 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. IRIS is used to support the EPA's regulatory activities. Id. The EPA is in the process of finalizing its Toxicological Review. Id.

C. University of Cincinnati

There have been additional efforts -- parallel to, and at times ...


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