Susan Norton


This article focuses on the expanded liability and enforcement exposure that major stationary sources bear under the Clean Air Act Amendments of 1990 and subsequent EPA rules known as the "Any Credible Evidence" Rule and the "Compliance Assurance Monitoring" Rule. The article notes that these regulations fail to adequately define "credible evidence" and argues that a definition, and thus an intelligible evidentiary analysis, can be fashioned based on the Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., as supported by the more recent cases of Joiner and Kuhmo Tire. The article's thesis is that demonstration of scientific validity (as informed by the four Daubert factors and subsequent scholarly writings) is the hallmark of credible evidence. To reinforce this thesis, the article proposes a series of Daubert-type "suggested factors" to assess the scientific validity of a standard air emissions monitoring technology (Method 9). The article concludes that learning to analyze scientific validity is a well-advised exercise for courts, regulatory agencies, and the regulated community that must deal with environmental compliance data (which becomes evidence in the event of litigation) in a post-Daubert world.