United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
Ameren Missouri moves to exclude the opinion of Plaintiff
Environmental Protection Agency's (EPA) expert Dr. James
Staudt. Dr. Staudt's opinions are relevant to determining
the balance of equities under an eBay analysis, he
is well-qualified to opine on the significance of best
available control technology, and his methods are reliable.
As a result, I must deny Ameren's Daubert motion
to exclude Dr. Staudt's opinions.
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.
remedy phase trial, the EPA seeks to call Dr. James Staudt as
an expert witness. Dr. Staudt is a mechanical engineer who
consults for industry clients, environmental organizations,
and regulatory agencies concerning pollution control
technology. (Brief in opposition, filed under seal at ECF No.
984 at 4). He has a PhD from M.I.T. and decades of experience
in the field. (Id.) The EPA seeks to call Dr. Staudt
at trial to testify about two opinions: 1) that flue gas
desulfurization (FGD) constitutes the Best Available Control
Technology (BACT) for Rush island, and 2) that Ameren's
failure to install FGD at Rush Island led to 160, 000 tons of
excess sulfur dioxide emissions. (Id. at 4-5). Dr.
Staudt's opinion is based in part Ameren's
feasibility studies evaluating FGD installation at Rush
Island, an EPA clearinghouse of 22 BACT determinations at
other coal-fired power plants, his control technology
experience, and the calculations contained within his expert
makes three arguments in favor of excluding Dr. Staudt's
testimony: 1) Dr. Staudt's opinion is irrelevant, because
I do not have authority to make a BACT determination when
determining an appropriate remedy; 2) Dr. Staudt is
unqualified to opine on BACT, because he has never prepared
nor reviewed a BACT-related permit submitted to the Missouri
Department of Natural Resources (MDNR); and 3) Dr.
Staudt's methods are unreliable because 21 of the 22 EPA
Clearinghouse BACT determinations that he refers to involve
power plants subject to a pollution standard that does not
apply to Rush Island.
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. 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). A designated expert can be
qualified by knowledge, skill, experience, training, or
education. Fed.R.Evid. 702. If an expert is qualified by
experience, that experience must “bear a close
relationship to the expert's opinion.” Schmidt
v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir.
2009). 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).
first argues that Dr. Staudt's opinion is irrelevant,
because I do not have authority to make a BACT determination
as a remedy in this case. Ameren makes the same arguments on
this point as it made in its Motion for Summary Judgment No.
1, (ECF No. 944) and Motion for Summary Judgment No. 2 (ECF
No. 946). I rejected those arguments and denied Ameren's
motions for summary judgment. (ECF No. 1045). I have
authority to issue injunctive relief in this case, and I may
make a BACT determination without upsetting the principles of
federalism inherent to the Clean Air Act. (Id.). As
a result, Dr. Staudt's opinion is relevant to my
consideration of remedies in this case, including any BACT
Qualification as an Expert
argues that Dr. Staudt is not qualified to opine on BACT
because he has never prepared or reviewed a permit or BACT
determination submitted to the MDNR. The MDNR is the Clean
Air Act permitting authority in Missouri who administers the
state's Prevent Significant Deterioration (PSD) program.
Ameren argues that the MDNR's permitting process is
specific to Missouri, and that Dr. Staudt does not have
experience evaluating the type of factors that may be
dispositive in MDNR's analysis. Ameren specifically
objects that Dr. Staudt did not consider potential job losses
or rate increases when determining that FGD would constitute
BACT at Rush Island. (ECF No. 1014 at 8). Ameren does not
argue that Dr. Staudt is unqualified to testify about
pollution control technology.
Staudt is qualified by knowledge, experience, and training.
He has more than twenty-five years of experience providing
consulting advice on the performance and cost of pollution
control technology, according to his expert report. (filed
under seal at ECF No. 984-2 at 6). He has testified in
another recent Clean Air Act case that he has experience
reviewing several dozen BACT analyses for states and for EPA.
(United States v. Westvaco, No. MGJ-00-2602 Trial
Transcript, ECF No., 985-4 at 8:19-9:23). In
Westvaco, he offered an opinion on what constitutes
BACT for a coal fired power plant's boiler. (Id.
at 19). He has a PhD in mechanical engineering from M.I.T.
and additional experience designing pollution control
technology. (Expert ...