Judge bars former EPA official from testifying in enforcement suit

A federal judge yesterday disqualified former U.S. EPA air chief Jeff Holmstead as an expert witness backing a Missouri power plant in an agency enforcement lawsuit.

Holmstead, who served as head of EPA's air office from 2002 to 2005, provided an expert report to the U.S. District Court for the Eastern District of Missouri on behalf of Ameren Missouri, whose Rush Island Plant in Festus, Mo., is the subject of the case.

The testimony detailed his interpretation of when modifications to a power plant trigger new permitting requirements, including installing best available control technology.

EPA filed the case in 2011, claiming Ameren violated the Clean Air Act by failing to notify the agency of major modifications to multiple units at the plant.

The upgrades, EPA said, required New Source Review and Prevention of Significant Deterioration permits, as well as the installation of controlling technologies for emissions of pollutants such as sulfur dioxide.


Ameren has countered that the upgrades qualified as routine maintenance and argued that EPA has failed to prove the upgrades will actually cause an emissions increase.

Holmstead, now a partner at Bracewell & Giuliani, prepared a report on a specific emissions increase analysis based on relevant EPA regulations at the time of the modifications.

EPA, in a July motion, sought to disqualify him as a witness by claiming he was basing his opinions on privileged information he obtained while working at EPA.

The testimony, EPA said, is a "pressing problem" because it relies on "internal meetings" that "he says are relevant to the issues to be tried in this action. Such internal communications are privileged and confidential and Mr. Holmstead may not rely on his recollection of them to testify against EPA."

Further, EPA claimed that Holmstead had been involved in enforcement actions against Ameren during his time at the agency.

Ameren strongly pushed back on the motion, claiming there was no privileged information in Holmstead's testimony and he "did not participate substantially in any enforcement case" against Ameren while at EPA.

"EPA has not pointed to a single word in Mr. Holmstead's report that rests on any confidential information," Ameren told the court, adding that the agency is trying to disqualify him because he disagrees with EPA's methods.

That wasn't enough for Judge Rodney Sippel, however, who granted EPA's motion in a short order yesterday.

Holmstead did not return a call seeking comment on the order. He does not regularly testify in EPA enforcement lawsuits.

A source familiar with the litigation and sympathetic to Holmstead classified the motion as "significant overreach." The source also noted the EPA investigation into Ameren didn't begin until seven years after Holmstead left the agency.

"The ruling is disappointing because it deprives the process of some useful insight," the source said. "That said, the litigants still have access to other experts. According to those present at the trial, the judge made crystal clear from the bench that the basis for the ruling is procedural and is not based on any ethical concerns."

Twitter: @GreenwireJeremy | Email:

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