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By Patrick Ambrosio
July 21 --Former Environmental Protection Agency official Jeffrey Holmstead should be barred from serving as an expert witness in an enforcement action against a utility company, the Justice Department told a federal court (United States v. Ameren Missouri, E.D. Mo., No. 4:11-cv-77,motion to disqualify filed 7/18/14).
The DOJ, in a motion filed July 18, asked the U.S. District Court for the Eastern District of Missouri disqualify Holmstead as an expert witness for Ameren Missouri due to “multiple conflicts of interest.”
Holmstead, now a partner at Bracewell & Giuliani LLP, served as EPA assistant administrator for air and radiation in the administration of President George W. Bush.
Ameren Missouri is contesting EPA allegations that the company failed to obtain proper construction permits and didn't install the required best available pollution control technology when it modified two coal-fired electricity generating units at the Rush Island Plant in Festus, Mo.
The government said it is objecting to Holmstead's testimony based on a May expert report, which the DOJ said indicates that Holmstead would rely on his recollection of “privileged and confidential” information obtained at internal EPA meetings. Holmstead also participated in power plant enforcement cases that are “related” to the Ameren Missouri case and received other privileged information on the issues that he now seeks to testify on, according to the motion.
The DOJ filed the motion after the government and Ameren Missouri failed to reach an agreement to resolve the objections to Holmstead's testimony .
Bracewell & Giuliani, the law firm that employs Holmstead, did not respond to a request for comment.
The DOJ, in a memorandum filed in support of the motion, said Holmstead should be disqualified from serving as an expert witness based on both the Rules of Professional Conduct of the District of Columbia, where Holmstead currently works as an attorney, and the Missouri Rules of Professional Conduct.
The memo alleged that Holmstead's testimony would violate confidentiality provisions that prohibit lawyers from using “client confidence” to the disadvantage of the client or to the advantage of a third party. Holmstead's testimony would use “internal confidences” that he gained while working at the EPA to the disadvantage of the EPA and to the advantage of Ameren Missouri, according to the DOJ.
Holmstead, in his expert memo, said that the “regained hours” methodology for analyzing a power plant's emissions, also referred to as the GADS method, was not mentioned during EPA internal meetings on the development of the agency's new source review permitting program. In the expert memo, Holmstead said use of that methodology is not consistent with the EPA new source review regulations.
The DOJ memo also argued that Holmstead should be disqualified because he participated in other new source review enforcement cases, which are “substantially related” to the Ameren Missouri case. The memo cited evidence that Holmstead played a “supervisory role” on specific power plant litigation briefing under the new source review program.
Holmstead also had a “confidential relationship” with the EPA that would disqualify him from serving as an expert witness even if he weren't relying on “internal confidences” and hadn't participated in substantially related litigation while at EPA, according to the Justice Department.
The traditional standards governing expert witness conflicts provide that an expert should be disqualified if there was a confidential relationship between the expert and the party claiming the conflict--in this case the EPA--and if that party had provided confidential or privileged information to the expert, the DOJ said.
It is “objectively reasonable” for the EPA to conclude that it had a confidential relationship with Holmstead, who held the highest-ranking position within the EPA Office of Air and Radiation, according to the DOJ. During his time at the EPA, Holmstead received privileged and confidential internal communications relevant to the new source review program, on which he now seeks to testify, the Justice Department said.
An attorney familiar with the litigation told Bloomberg BNA July 21 that the DOJ filings fail to identify what information they specifically allege is confidential, an obligation that the party seeking to disqualify an expert witness on those grounds must meet. The attorney said it is “just not possible” for those rules regarding confidential information to apply to Holmstead, given the amount of time that passed between his service at EPA and the filing for the enforcement case against Ameren Missouri.
Holmstead left the EPA in 2005. The EPA filed its enforcement case against Ameren Missouri in 2011.
Eric Schaeffer, executive director for the Environmental Integrity Project and former director of the EPA Office of Civil Enforcement, told Bloomberg BNA July 21 that he isn't familiar with the specifics of the DOJ allegations against Holmstead, but he explained that former EPA officials do have some ethical obligations after leaving the agency.
Schaeffer said former officials aren't allowed to “take information that's confidential out of EPA and use it for the other side” in an enforcement case. He said such confidential information could include analysis of a company's economic position gained while looking at possible civil penalties and information learned during negotiations or settlement discussions that are not part of the public or legal record.
Schaeffer said the DOJ has never objected to his involvement in litigation against the EPA, though he noted that his organization generally files “deadline suits” that aim to compel the EPA to put regulations in place when they miss a deadline. The Environmental Integrity Project also has weighed in on lawsuits challenging the policy of some EPA rulemakings, including the new source review program, but has based their arguments on information that was part of the public record, he said.
Several other former high-ranking EPA officials did not immediately respond to requests for comment on their ethical and legal obligations related to their service at the EPA.
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The July 18 motion to disqualify in United States v. Ameren Missouri is available at http://www.bloomberglaw.com/public/document/United_States_of_America_v_Ameren_Missouri_Docket_No_411cv00077_E/3.
The Justice Department memo is available at http://www.bloomberglaw.com/public/document/United_States_of_America_v_Ameren_Missouri_Docket_No_411cv00077_E/4.
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