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United States v. Ameren Missouri

United States District Court, E.D. Missouri, Eastern Division

March 27, 2019




         Plaintiff Environmental Protection Agency (EPA) moves to exclude the opinions of Ameren's expert witness Colin Campbell. The EPA provides evidence that Campbell ignored his own advice, EPA manuals, and accepted practice when developing his best available control technology (BACT) analyses. Although these arguments affect the credibility of Campbell's testimony, I cannot say that Campbell's methods are so unreliable that they should be excluded under Daubert. Additionally, I cannot conclude that Campbell's opinion concerning “avoidance theory” is irrelevant, as a matter of law. As a result, I will deny EPA's motion to exclude Campbell's opinion.


         On January 23, 2017, after a bench trial, I found that Ameren violated the Clean Air Act, 42 U.S.C. § 7401 et seq., by failing to obtain a permit before making major modifications to its Rush Island Plant. (ECF No. 852).

         The liability and remedies phases of this case were severed. At the remedy phase trial, Ameren seeks to introduce the expert testimony of Colin Campbell. Campbell is the vice president of RTP Environmental Associates, Inc. (Campbell Deposition, filed under seal at No. 968-5 at 7:15-21). Campbell's expert disclosure report includes two opinions discussed by the parties: 1) that a current BACT determination would designate dry sorbent injection (DSI) as BACT; and 2) that Ameren should not be required to obtain a prevent significant deterioration (PSD) permit under “avoidance theory.” Campbell asserts that, if Ameren had known the consequences of its major modifications, it would have chosen to obtain a minor permit instead.

         The EPA argues Campbell does not use reliable methods in reaching these opinions, specifically that he skips three of the five steps undertaken in any BACT analysis. The EPA also argues that Campbell conducts an unreliable incremental cost effectiveness analysis, a method that should only be used when dominant control options have similar cost effectiveness. Ameren argues that Campbell's method is consistent with the MDNR's permitting process, and that the MDNR has rejected wet flue gas desulfurization (FGD) using similar methods.


         Pursuant to Federal Rule of Evidence 702 and Daubert, I must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, (1993). Expert testimony must be excluded if its reasoning or methodology is either unreliable or unreliably applied to the facts of the case. Id. 592-93. “[A]ny step that renders the analysis unreliable under . . . Daubert . . . renders the expert's testimony inadmissible.” McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1245 (11th Cir. 2005). The burden is on the party offering the expert testimony to prove that it is reliable. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006). This standard applies to all expert testimony, whether “scientific, technical, or other specialized” knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999). The objective of these requirements are to make sure that experts “employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Even so, “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. . . .The rule clearly is one of admissibility rather than exclusion.” Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal citations and quotations removed).


         I. Campbell's Opinions Concerning BACT Determinations

         The EPA argues that Campbell fails to use the same intellectual rigor that professionals use when conducting a BACT analysis. As acknowledged by Campbell (Campbell deposition, filed under seal at ECF No. 968-5 at 196:11-18)[1], permit applications and permit support documents typically involve a five-step process. Under that five-step process, one should (1) identify all potentially available control options, (2) eliminate any options that are not demonstrated, available, or applicable, (3) rank all available control technologies based on the amount of pollution they remove, (4) evaluate the energy, environmental, and economic impacts of the highest-ranked control technology, and (5) if the highest ranked technology is not appropriate, eliminate it and evaluate the next-highest ranked technology. In Re: Northern Michigan University Ripley Heating Plant, 14 E.A.D. 283, 2009 WL 443976, at *9-10 (Feb. 18, 2009).

         As part of step 4, a BACT analysis may include evaluation of “incremental cost effectiveness, ” and average cost effectiveness. See In Re: General Motors, Inc. Permit no. MI-209-00, 10 E.A.D. 360, 2002 WL 373982, at *9. Incremental cost effectiveness represents the additional cost per unit of pollutant removed when comparing two control technologies ranked directly adjacent to each other. Id. at *10. Average cost effectiveness represents the total cost of an option per unit of pollutant removed, without reference to other options. Id. at *9.

         Instead of following this five-step process, Campbell made an abbreviated analysis. He considered four possible control technologies. Although he appears to have ranked them, he did not evaluate them in order of rank. Instead he eliminated the second- and third-highest ranked options after what he calls a “cursory consideration.” (ECF No. 968-5 at 202:11-203:12). Specifically, Campbell considered wet FGD, dry FGD with a baghouse, dry sorbent injection (DSI) with a baghouse, and DSI without a baghouse. Campbell eliminated dry FGD with a baghouse because it would be more costly than wet FGD, and therefore could not be the “dominant” control technology. (Id. at 202:3-13). Similarly, he eliminated DSI with a baghouse because it was less effective than dry FGD, but still required an expensive baghouse. (Id. at 203:8-12). “No real analysis [was] necessary, ” in Campbell's view. (Id. at 203:8).

         Campbell then evaluated the incremental cost effectiveness of the highest-ranking technology, wet FGD, against the only other technology remaining, DSI without a baghouse. Campbell found that the incremental cost effectiveness exceeded $6, 800, a threshold he purports represents an upper limit on the BACT determinations that the MDNR has made. (Campbell deposition, filed under seal at 968-5, ECF No. 968-5 ...

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