Prewitt (argued), Greenberg Traurig, LLP, Chicago, IL, Andree Matherne Cullens, Taylor, Porter, Brooks & Phillips LLP, Baton Rouge, LA, for Apco Liquidating Trust. Koester (argued), United States Department of Justice, Washington, DC, John J. Mc Millian, Liquidating Trustee for the Apco Liquidation Trust and Apco Missing Stockholder Trust ("Liquidating Trustee"), petitions to enforce a subpoena he issued to Shaw Environmental, Inc.
Carley, Graves Carley LLP, Baton Rouge, LA, for Shaw Environmental, Inc. The Environmental Protection Agency ("EPA") opposes the petition and resists production of certain documents on the basis of the deliberative process privilege. Department of the Army, , 854 (3d Cir.1995) (government must make the initial showing that it is entitled to assert the privilege).
Both parties used the same computer model, but inputted different variables.
Faced with competing modeling, the Court reasoned that “even in the best of circumstances, a model is only an estimate and the accuracy of the estimate depends to a considerable extent on the data selected for sue in the computer model, the quality and reliability of that data and, of course, the skill of the modeler.” Ultimately, the Court rejected the City’s modeling base don Daubert, holding that “To be reliable, the expert’s testimony must be based on the ‘methods and procedures of science’ and reflect more than the witness’’ ‘subjective belief or unsupported speculation.’” After examining glaring errors in the City’s modeling, the Court rejected the City’s methodology because it was not based on any guidelines or standards, but rather on poor quality “professional judgment”.
Although the deliberative process privilege applies to some of the documents the EPA has withheld, the plaintiff's need for the information in the documents outweighs the privilege and so they must be produced. Therefore, because the EPA and USACOE were directing Shaw's work relating to the Oklahoma site remediation when it created the 85 documents under review, the documents may be privileged if the government establishes that the deliberative process privilege applies to them. The deliberative process privilege applies to some of the documents the EPA withheld, but not to all of them.
The Liquidating Trustee's subpoena relates to claims the Oklahoma Department of Environmental Quality, the EPA and the Oklahoma Attorney General (collectively, "Claimants") filed in the chapter 11 reorganization of debtors Apco Liquidating Trust and Apco Missing Stockholder Trust. The Claimants are seeking to recover past and future cleanup costs and natural resource damages incurred by the trusts' predecessor, Apco Oil Company, which allegedly disposed of petroleum and hazardous substances on ground in Cyril, Oklahoma, that came to be designated the Oklahoma Refining Company Superfund Site. The documents and parts of documents that are privileged contain Shaw's deliberative and pre-decisional statements and recommendations concerning the proposed remediation of the contaminated site.
No one has suggested that any other source for that information exists. The EPA cannot reasonably seek more than ,000,000 from the estate for remediation based on Shaw's analysis and decline to disclose to the Liquidating Trustee that analysis, which is relevant to the trustee's effort to determine the validity of the EPA's claim.
Finally, the substantial amount the Claimants seek for remediating the Oklahoma property supports the conclusion that this is serious litigation. J.1998) (noting that courts have severely restricted the government's use of the deliberative process privilege when the government seeks affirmative relief). The Liquidating Trustee seeks materials discoverable in litigation by a private plaintiff or a private claimant in a bankruptcy case.
This presentation will focus on the City of Wichita’s largely failed efforts to collect its response costs for remediating the Gilbert \u26 Mosley Site (“Site”), one of the premier Brownfield redevelopment models. Trustees of the Apco Oil Corporation Liquidating Trust, 306 F. Both parties used computerized groundwater modeling to determine the plume sizes allegedly migrating from each source, and mathematical computations to allocate orphan shares within the Site.The OFR/GPO partnership is committed to presenting accurate and reliable regulatory information on Federal with the objective of establishing the XML-based Federal Register as an ACFR-sanctioned publication in the future.