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The documents posted on this site are XML renditions of published Federal Register documents.Each document posted on the site includes a link to the corresponding official PDF file on Ramos is a litigator and bankruptcy professional whose practice is focused on proceedings in the Delaware Bankruptcy and District Courts. Marcos is active in several professional organizations, including the ABA and the Hispanic National Bar Association, and he formerly served as the chairman of the New Castle County Diversity Commission by appointment of the New Castle County Executive. 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).
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.EPA and United States Army Corps of Engineers ("USACOE"). That information eventually led to the EPA's 2004 decision not to implement Shaw's proposal for remediating the site.Shaw analyzed the site and recommended a cleanup plan to the EPA and USACOE. Sears, Roebuck & Co., , 38-39 (5th Cir.1982) ("careful case by case analysis of the material sought is necessary" to determine if the material is deliberative or merely purely or predominantly factual). Specifically, the deliberative process privilege applies to the following documents and portions of documents the EPA withheld, listed as they are numbered on the amended privilege log. Thus, even if material is privileged, the party seeking it through discovery may defeat the privilege claim by showing that the party's need for information outweighs the agency's interest in confidentiality. 2009) (weighing all Redland factors evenly after declining to apply a "bright line" rule giving government's role greater weight in the analysis).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”.