Union Pacific asks judge to order EPA to stop destroying records related to Omaha lead cleanup

Union Pacific says EPA destroyed records it wanted

OMAHA, Neb. — Union Pacific Corp. asked a federal judge Wednesday to order the Environmental Protection Agency to stop destroying records the railroad requested about lead contamination in Omaha.

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 the railroad’s home city because they disagree about the source of the contamination.

U.S. District Judge Laurie Smith Camp issued a temporary restraining order Wednesday ordering the EPA not to destroy any records the railroad requested while the lawsuit moves forward.

In Union Pacific’s lawsuit, the railroad quotes from several e-mails where 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.

In one e-mail the lawsuit references, 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.”

EPA spokesman Dale Kemery said the agency doesn’t typically comment on pending litigation.

Union Pacific said in its lawsuit that the document destruction appears to go back at least to 2004. Railroad officials want the court to help determine what has been destroyed and force the EPA to produce the records.

Union Pacific said the EPA has been slow to respond 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 still not sure whether the agency provided everything requested.

Much of eastern Omaha has been designated a superfund site by the EPA because of the extent of the contamination.

Excessive lead is thought to be present in thousands of Omaha yards. The lead 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 because of the health problems high levels of lead can cause.

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 ended in 1946 when Asarco bought the land and continued operating a smelter there until its closure in 1997.

Union Pacific also argues that lead-based house paint caused the contamination because nearly 80 percent of the homes in the area were built before 1950, when lead paint was common.

Union Pacific spokeswoman Donna Kush said the railroad believes the e-mails it is requesting would help resolve the dispute over the cause of contamination.

“The documents we’re requesting would show what EPA knows about the true cause of lead in Omaha soils and whether the hundreds of millions of dollars EPA is spending will solve the problem,” Kush said.

In another e-mail cited in the lawsuit, Feild asked another EPA official whether samples collected before August 2004 were biased because of the presence of lead paint.

Asarco agreed last year to pay nearly $1.8 billion to help clean up contamination at more than 80 sites in 19 states. Those settlements included $776 million that went to the federal government to help pay for cleanup at 35 different sites, including Omaha.

Online:

EPA Superfund: www.epa.gov/superfund

Union Pacific Corp. lead cleanup site: www.uprr.com/newsinfo/media_kit/epa