Judge orders EPA to preserve records related to Omaha lead cleanup, assigns expert to verify

Judge orders EPA not to destroy records UP wants

OMAHA, Neb. — A federal judge ordered the Environmental Protection Agency on Thursday to stop destroying records Union Pacific requested about lead contamination in Omaha, and an expert was appointed to make sure the agency complies.

The judge’s order resolved several issues the railroad and EPA couldn’t agree on when discussing the rules to protect records while Union Pacific’s lawsuit progresses. The Omaha-based railroad sued in June after obtaining e-mails in which EPA officials discussed deleting records.

U.S. District Judge Laurie Smith Camp picked the records expert EPA lawyers recommended, but she established a broad scope for the expert’s work, like the railroad requested. Camp also ordered the EPA not to reuse any of its backup tapes until the expert has reviewed the agency’s plan to protect relevant data.

The information Union Pacific seeks relates to 5,600 lead-contaminated properties in Omaha. The EPA and Union Pacific have been trying for years to settle who should pay more than $200 million to clean up the lead.

The EPA and the railroad disagree about the contamination’s source with the EPA blaming industrial sources of lead and Union Pacific arguing lead house paint is the real problem.

Railroad officials hope the records they are requesting will prove that Union Pacific isn’t responsible for the contamination.

“The most important thing is that the right cause for the lead issue in Omaha is identified,” Union Pacific spokesman Tom Lange said Thursday.

EPA officials did not immediately respond to a message left Thursday.

Union Pacific said in its lawsuit that the document destruction may date back to at least 2004. UP quoted several e-mails where an EPA supervisor encourages employees to delete messages so the railroad won’t be able to obtain the information under the Freedom of Information Act.

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.

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 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.

Online:

EPA Superfund: www.epa.gov/superfund

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