United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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).
Campbell's Opinions Concerning BACT
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), 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).
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.
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
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 ...