OMAHA, Neb. - Tucson-based Asarco wants to revive its public-records lawsuit over Environmental Protection Agency information about lead contamination in Omaha in hopes that it can recover millions from businesses involved in the contamination.
Earlier this fall, Asarco tried to intervene in a federal lawsuit Union Pacific had filed against the EPA after the railroad learned that agency officials may have deleted some records related to 5,600 lead-contaminated properties in Omaha.
Government lawyers opposed the mining company's effort to intervene in the Union Pacific lawsuit. Although the Omaha judge has yet to rule on Asarco's motion to intervene, the company decided to ask a Washington, D.C., federal judge Thursday to reopen its records lawsuit.
Asarco lawyer Gregory Evans said the evidence that EPA officials destroyed documents related to the lead contamination is compelling.
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"This is a case that cries out for not only reopening, but court supervision," said Evans, who is based in Los Angeles.
Both Asarco and Union Pacific quote several e-mails in which an EPA supervisor encourages employees to delete messages so the information won't be releasable under the Freedom of Information Act.
In one e-mail the lawsuits refer to, the supervisor overseeing the Omaha lead site, Robert Feild, wrote: "As these e-mails are subject to FOIA and probably discovery requests later, delete messages like this one after they are sent so you don't end up getting subpoenaed."
Feild played a key role in getting Asarco's records lawsuit dismissed in July because he swore to the court that Asarco had received all records relevant to its request and no one else at the EPA would have records related to the lead contamination.
An EPA spokesman did not immediately respond to messages Friday, but agency officials do not typically comment on pending litigation.
Asarco paid $200 million as part of a settlement with the EPA because it ran a lead smelter in Omaha for more than 50 years before the smelter closed in 1997. Asarco did not admit fault in the settlement.
The EPA documents Asarco is seeking could help it recover compensation from companies that contributed to the contamination.
Union Pacific and the EPA say in court documents they've reached a tentative settlement in their records dispute, but no details were disclosed. Railroad spokesman Tom Lange declined to comment on that or on Asarco's efforts to revive its lawsuit.
The EPA and Union Pacific have been trying for years to settle who should pay several hundred million dollars to clean up the lead.