AVX Corporation v. United States of America
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:07-cv-03299-TLW. Copies to all parties and the district court/agency. [999038452].. [11-1697]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1697
AVX CORPORATION,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
and
HORRY LAND COMPANY, INCORPORATED,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:07-cv-03299-TLW)
Argued:
October 23, 2012
Decided:
February 7, 2013
Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Keenan joined.
ARGUED: Kevin Augustus Dunlap, PARKER, POE, ADAMS & BERNSTEIN,
LLP, Spartanburg, South Carolina, for Appellant.
Lane N.
McFadden, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
ON BRIEF: Steven D. Weber, PARKER, POE, ADAMS &
BERNSTEIN, LLP, Spartanburg, South Carolina, for Appellant.
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Ignacia S. Moreno, Assistant Attorney General, UNITED
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
STATES
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
AVX
Corporation
Comprehensive
sued
the
Environmental
United
States
Response,
under
Compensation,
the
and
Liability Act (“CERCLA”) § 107(a), 42 U.S.C. § 9607(a), seeking
recovery
of
costs
it
incurred
cleaning
up
a
parcel
of
real
estate known as the Horry Land property in Myrtle Beach, South
Carolina.
The United States filed a counterclaim for equitable
contribution
under
CERCLA
§ 113(f),
42
U.S.C.
§
9613(f).
Following a bench trial, the district court concluded that the
United States did not contribute to any contamination on the
property.
On
appeal,
AVX
district court.
challenges
the
factual
findings
of
the
AVX also claims that the district court applied
the wrong legal standard by (1) failing to conduct the requisite
divisibility
analysis
under
§ 107(a);
(2)
adjudicating
the
United States’ § 113(f) counterclaim for equitable contribution
without any divisibility analysis; and (3) requiring more than
circumstantial
argues
that
testimony
of
evidence
to
the
district
a
government
establish
court
wrongly
witness.
affirm.
3
liability.
We
Last,
admitted
find
no
the
AVX
expert
error
and
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I.
A.
At
the
beginning
of
World
War
II,
the
United
States
constructed a military base on approximately 6,700 acres of land
in
Myrtle
Beach,
South
Carolina.
The
Army
Air
Force,
the
precursor to the present day United States Air Force, operated
the Myrtle Beach Army Air Field (the “Air Field”) from 1941 to
1947.
Military operations waned following the end of the war,
and the United States eventually returned the land to the City
of Myrtle Beach in 1947.
In the ensuing years, the land was subdivided into several
parcels.
The United States reacquired a portion of the land in
1954 to build and operate the Myrtle Beach Air Force Base (the
“Air Force Base”).
use.
The
The remaining parcels were put to commercial
chemical
contaminant
at
issue
in
this
case--
tricholoroethylene (“TCE”)--has been discovered on each of the
parcels to varying degrees.
At trial, AVX offered two different theories to prove that
the United States caused TCE contamination on the Horry Land
property.
First, AVX asserted that United States operations at
the Air Field during World War II caused TCE contamination on
all of the parcels that the Air Field formerly encompassed--
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including the Horry Land property. 1
Second, AVX asserted that,
even after the Air Field was closed and its land subdivided, the
United States caused TCE contamination on the plot of land it
reacquired--the Air Force Base.
Under both theories, AVX argued
that TCE material released by the United States migrated to the
Horry Land property over the years.
In order to best address AVX’s arguments on appeal, we give
an overview of the record evidence relating to TCE contamination
on the relevant parcels.
1. The AVX Property
From 1949 to 1986, AVX owned a twenty-acre lot on which it
used
TCE
ceramic
as
a
releasing
capacitors.
AVX
agent
and
stored
degreaser
TCE
in
to
manufacture
above-ground
and
underground storage tanks, and transported TCE from those tanks
to its manufacturing facilities through underground pipes.
The
district court found that considerable groundwater contamination
occurred
disposing
on
the
TCE
AXV
waste
property
through
directly
into
(1)
the
AVX’s
practice
soil;
(2)
of
leaks,
overflows, and spills of TCE waste from AVX’s underground tanks;
1
At trial, the United States denied that its operations at
the Air Field during World War II--which consisted primarily of
recruiting
and
aircraft
maintenance–-contributed
to
the
contamination.
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and (3) ruptured pipes that discharged TCE waste into the soil
and groundwater. 2
From approximately 1982 to 1995, AVX tried to remediate the
contamination without reporting it to either the South Carolina
Department of Health and Environmental Control (“DHEC”) or the
Environmental Protection Agency (“EPA”).
After its own efforts
to stop the contamination failed, AVX finally notified DHEC of
the problem in 1996.
between
the
Pursuant to a subsequent “consent order”
parties,
AVX
assumed
responsibility
for
investigating and cleaning up all groundwater contamination in
exchange for DHEC “covenants not to sue” under CERCLA and South
Carolina environmental statutes.
J.A. 1757.
Upon fulfillment
of the terms of the consent order, AVX’s environmental liability
would “be deemed as resolved between AVX and [DHEC].”
J.A.
1759.
2. The Cinema Property
To the south of the AVX property lies a plot of land owned
by
Carmike
Cinemas,
Inc.
(“Carmike”)
that
has
been
used
at
various points as a movie theatre, an automotive repair shop,
and a manufacturing facility for fiberglass camper shells.
2
In
In 1981, a risk assessor estimated that nearly 6,200
gallons per month of TCE waste percolated from the ground into
shallow groundwater as a result of AVX’s activities.
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the late 1990s, Carmike agreed with DHEC to undertake cleanup
efforts after substantial TCE contamination was discovered on
the north portion of the property.
In 2000, DHEC certified that
the property had been successfully and completely remediated.
3. Myrtle Beach Air Force Base
To the west of both the AVX and Cinema properties lies the
Air Force Base that the United States military opened in 1954.
Air Force Base personnel used TCE as a degreaser between 1955
and the mid-1980s, and contamination has been found on several
locations at the western end of the property.
contacted
DHEC
contamination,
under
their
and
and
EPA
as
soon
thereafter
supervision.
as
undertook
The United States
it
discovered
remediation
Nevertheless,
the
the
efforts
United
States
maintains that it has caused none of the contamination for which
AVX has incurred clean-up costs.
4. The Horry Land Property
East of the AVX property is the principal subject of this
litigation--the Horry Land property.
AVX leased the twenty-
seven acre property as a parking lot from 1979 to 2005.
In July
2006, Horry Land Company, Inc.--who owned the property--learned
that its property suffered significant TCE contamination, which
it
claimed
parcel.
order,
was
caused
by
AVX’s
activities
on
the
adjoining
In August 2006 and under the power of the consent
DHEC
ordered
AVX
to
investigate
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and
remediate
the
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contamination on the property.
AVX has thus far expended over
$1 million in remediation costs for the Horry Land property, and
projects future costs of $5 million.
B.
AVX
sued
reimbursement
property.
in
Horry
of
Land
clean-up
under
costs
CERCLA
§ 107(a),
incurred
at
the
seeking
Horry
Land
Because AVX believed that chemical constituents found
the
groundwater
“consistent
with
property,”
AVX
of
the
materials
concluded
Horry
Land
formerly
used
that
Horry
property
by
Land
AVX
were
at
Company
not
the
AVX
had
been
responsible for the contamination that AVX had been compelled to
clean up.
J.A. 40.
In April 2009, AVX amended its complaint to
join the United States as a party defendant under the theory
that United States military operations--during World War II on
the
Air
Field
and
afterwards
on
the
Air
Force
Base--also
contributed to the TCE contamination discovered on the Horry
Land property.
The United States filed a counterclaim under
CERCLA § 113(f)(1), for equitable contribution.
AVX and Horry
Land eventually settled their dispute, leaving the United States
as the sole defendant.
Following
a
six-day
bench
trial,
the
district
court
concluded that United States operations on the Air Force Base
did
not
contaminate
the
Horry
Land
property,
crediting
the
testimony of government expert witness Dr. Dennis O’Connell that
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there was no “groundwater connection between any area west of
the runways [on the Air Force Base] and the Horry Land Property”
for
TCE
to
have
migrated
property.
J.A. 1592.
assessment
of
analysis
of
Dr.
an
from
the
base
to
the
Horry
Land
The district court concurred with the
O’Connell,
environmental
which
was
consultant
“corroborated
retained
by
by
the
the
Air
Force and approved by DHEC and the EPA,” J.A. 1623, that the
hydrogeology
directions
of
to
the
the
area--with
south,
west,
prevailing
or
groundwater
southwest--foreclosed
flow
the
possibility that any TCE contamination on the Air Force Base
migrated east towards the Horry Land property.
As for the Air Field, the district court was persuaded by
the expert testimony of historian Dr. Jay Brigham, who opined
that TCE scarcity during World War II made it unlikely that the
United States military ever used that material at the Air Field.
Based
United
on
this
States
testimony,
had
caused
the
district
contamination
court
only
found
on
the
that
the
western
portion of the Air Force Base, and had caused no contamination
during World War II when it utilized the entire tract.
As a result, the district court concluded that the United
States
was
not
a
meaning of CERCLA.
district
court
“potentially
responsible
party”
within
the
Notwithstanding its § 107(a) conclusion, the
adjudicated
the
United
States’
§ 113(f)
counterclaim for contribution and determined that the relevant
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equitable
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factors
costs to AVX.
supported
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allocating
100%
of
the
response
This appeal followed.
II.
A.
We first address AVX’s challenge to the court’s decision to
admit the testimony of expert witness Dr. Dennis O’Connell.
We
review that decision for abuse of discretion, mindful that the
district
court
occupies
the
role
of
“gatekeeper”
expert testimony is both reliable and relevant.
to
ensure
See Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 260-61 (4th Cir.
2005).
Under Rule 702 of the Federal Rules of Evidence, district
courts
may
qualified
admit
as
an
expert
expert
testimony
by
by
“[a]
knowledge,
witness
skill,
who
is
experience,
training, or education” if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts
or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
On appeal, AVX principally contests whether
Dr. O’Connell was “qualified” to give expert testimony under
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702,
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claiming
he
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lacked
“specialized
knowledge”
in
the
field of hydrogeological groundwater migration.
AVX
challenges
First,
fronts.
Dr.
contends
it
O’Connell’s
that
qualifications
Dr.
O’Connell
on
two
lacked
the
requisite qualifications because his professional background was
in sediment rather than groundwater, and that this case was his
first project in which TCE was the primary chemical constituent.
Second,
even
if
hydrogeology,
properties,
specific
AVX
and
to
Dr.
as
O’Connell
argues
TCE
result,
only
is
qualified
to
first
TCE
a
that
did
point,
an
have
has
experience
unique
expert
assess
chemical
with
its
in
experience
hydrogeological
migration.
As
to
expertise.
the
AVX
undersells
Dr.
O’Connell’s
Dr. O’Connell has a Ph.D. in geology and decades of
experience with hydrogeological projects at the water resources
division
of
the
environmental
United
States
consulting
Geological
firm.
Survey
Contrary
and
at
to
an
AVX’s
characterization, Dr. O’Connell is a groundwater expert.
He
merely stated that his experience as an expert witness, not as a
geologist, was limited to sediment.
In
fact,
installing
and
Dr.
O’Connell
monitoring
had
See J.A. 352.
worked
groundwater
on
many
equipment.
projects
He
had
extensive experience in “contaminant assessment” and understood
how contaminants--including TCE--“move[] in groundwater.”
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Dr. O’Connell, therefore, had experience within the
relevant field of hydrogeology and applied that expertise to
assessing
Myrtle
the
Beach
groundwater
contamination
properties.
Cf.
Cooper
around
v.
Lab.
the
relevant
Corp.
of
Am.
Holdings, Inc., 150 F.3d 376, 380-81 (4th Cir. 1998) (affirming
district
court’s
exclusion
of
expert
witness
who
“had
no
experience, beyond a general knowledge of chemistry, of forensic
toxicology” from testifying on the accuracy of urine alcohol
testing).
AVX
seeks
to
discredit
that
expertise
at
an
even
finer
degree of particularity, arguing that even if Dr. O’Connell had
worked in the right field, he did not have sufficient experience
with the right chemical--TCE.
This is too narrow a reading of
the specialized knowledge requirement.
“Certainly, an expert
must have specialized knowledge to assist [a trier of fact] in
deciding
particular
issues
in
the
case,”
but
this
Court
has
taken care not to “read[] this requirement . . . too narrowly.”
Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir.
2012).
AVX
does
not
explain
why
TCE’s
chemical
properties
are
unique, or why Dr. O’Connell could not have accounted for these
different chemical properties in his methodology.
In fact, AVX
does not challenge Dr. O’Connell’s methodology at all.
Under
these circumstances, AVX fails to demonstrate that Dr. O’Connell
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lacked the specialized knowledge to provide expert testimony on
the hydrogeological migration of TCE.
We will not elaborate further on the specificity required
to satisfy Rule 702, for the district court as “gatekeeper” is
best
situated
to
determine--on
assess witness qualifications.
knowledge
inquiry
specificity.
is
one
a
case-by-case
basis--how
to
This is because the specialized
of
sufficient
reliability,
not
“General” expertise may encompass multiple areas
of “specialized knowledge that will assist the trier of fact[.]”
Fed. R. Evid. 702; see In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 741 (3d Cir. 1994) (noting that even a “broad range of
knowledge, skills, and training qualify an expert as such”).
Dr. O’Connell’s expertise in hydrogeology was indeed broad,
but the issue is whether Dr. O’Connell could reliably apply his
general
experience
particular
deference”
chemical
to
a
with
groundwater
contaminant
district
court’s
contamination
TCE.
decision
We
on
to
commit
that
the
“great
question.
United States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000).
Applying that deference and our liberal construction of Rule
702’s “specialized knowledge” requirement, we conclude that the
district court did not abuse its discretion in admitting the
testimony of Dr. O’Connell.
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B.
AVX
next
contends
that
the
district
court
applied
the
incorrect legal standard under § 107(a) by failing to conduct an
analysis of whether the harm caused by the contamination on the
Horry Land property was divisible among the United States and
other parties.
analysis
would
We disagree.
have
been
In our view, any divisibility
improper
because
joint
and
several
liability does not apply to AVX’s claim--which is essentially an
action for contribution under § 113(f)(3)(B). 3
3
Although not addressed by the parties, we doubt whether
AVX, a PRP who entered into a DHEC consent order resolving its
environmental liability, may sue under CERCLA § 107(a) for costrecovery.
When squarely presented with the issue, our sister
circuits have uniformly held that an action for contribution
under § 113(f) is the exclusive remedy for a PRP compelled to
incur response costs through a consent order with a federal or
state government.
See Solutia Inc. v. McWane, Inc., 672 F.3d
1230, 1236-37 (11th Cir. 2012); Morrison Enters., LLC v. Dravo
Corp., 638 F.3d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v.
Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010);
Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d
112, 128 (2d Cir. 2010).
The reason for this prohibition
derives from § 113(f)(2), which provides that “[a] person who
has resolved its liability to the United States or a State in an
administrative or judicially approved settlement shall not be
liable for claims for contribution regarding matters addressed
in the settlement.”
As a result, if a settling PRP who enjoys
this statutory immunity could sue successfully under § 107(a),
it could foist joint and several liability upon another PRP, who
would then be unable to “blunt any inequitable distribution of
costs by filing a § 113(f) counterclaim,” United States v. Atl.
Research Corp., 551 U.S. 128, 139 (2007).
In this case,
however, any misstep as to the proper labeling of AVX’s claim is
inconsequential because AVX did not prevail on the merits.
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CERCLA
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§ 113(f)(1)
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states:
“Any
person
may
seek
contribution from any other person who is liable or potentially
liable
under
[§
107(a)] . . . .
claims,
the
court
may
In
allocate
resolving
response
costs
contribution
among
liable
parties using such equitable factors as the court determines are
appropriate.”
The
core
elements
of
a
CERCLA
§
113(f)(3)(B)
contribution claim require (1) that the plaintiff incur response
costs
pursuant
to
a
consent
order
discharging
§
107(a)
liability; (2) that the defendant bears partial responsibility
for those costs as a PRP under § 107(a); and (3) an equitable
allocation among the parties.
Under
either
CERCLA
§ 107(a)
or
§ 113(f),
therefore,
a
defendant must qualify as a PRP by causing the disposal of any
of
the
hazardous
remediation
opposite
waste
expense.
conclusion
for
But
here,
which
the
the
district
finding
that
plaintiff
court
any
TCE
incurred
reached
the
contamination
caused by the United States “did not migrate to the Horry Land
Property.”
J.A.
1642.
This
is
precisely
the
“causation”
finding that AVX claims is missing from the court’s analysis,
and
which
either
obviates
§ 107(a)
or
the
need
for
§ 113(f). 4
any
Axel
4
further
Johnson
analysis--under
Inc.
v.
Carroll
Notwithstanding this conclusion, the district court still
adjudicated the United States’ counterclaim under § 113(f) and
conducted an equitable allocation. This was unnecessary, as its
(Continued)
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Carolina Oil Co., 191 F.3d 409, 413 (4th Cir. 1999).
More
importantly, AVX fails to establish that this factual finding
was clear error.
See Plasterers’ Local Union No. 96 Pension
Plan v. Pepper, 663 F.3d 210, 215 (4th Cir. 2011) (stating the
relevant standard of review).
The district court undertook an exhaustive review of the
evidence before arriving at its sound conclusion. 5
In support of
its view that the United States bore no responsibility for the
contamination on the Horry Land property, the district court
credited:
(1) Groundwater samples collected by the Air Force
since the 1980s on the land that once comprised the Air Field,
which
detected
hydrogeological
demonstrated
States’
only
negligible
evidence
that
properties
tendered
groundwater
towards
did
the
quantities
by
Dr.
not
flow
Horry
Land
of
TCE;
O’Connell,
from
the
property;
(2)
which
United
and
(3)
“[t]he historical record,” as presented by Dr. Brigham, which
showed that TCE scarcity during World II rendered it unlikely
antecedent finding established that the United States did not
have any CERCLA liability that would allow equitable allocation.
5
The district court did not, contrary to AVX’s assertion,
incorrectly
elevate
the
legal
standard
for
establishing
liability beyond a circumstantial showing. It acknowledged that
AVX could demonstrate CERCLA liability through circumstantial
evidence, but simply found that evidence insufficient.
Cf.
Crofton Ventures Ltd. P’ship v. G&H P’ship, 258 F.3d 292, 296,
298 n.3 (4th Cir. 2001).
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that the material was ever used at the Air Field--“a ‘sub-depot’
at
which
only
performed.”
a
lower
level
of
aircraft
maintenance
was
J.A. 1616.
The bulk of this evidence came from the government’s expert
witnesses, whom the district court credited over AVX’s experts.
AVX
expends
credibility
much
effort
in
determinations,
its
but
brief
overlooks
challenging
the
these
principle
that
“[a]s with lay witnesses, evaluating the credibility of experts
and
the
value
of
their
opinions
is
also
a
function
best
committed to the district courts, and one to which appellate
courts must defer[.]”
(4th
Cir.
2012)
United States v. Hall, 664 F.3d 456, 462
(internal
quotations
omitted).
Here,
the
district court analyzed each expert witness’s testimony based on
the reliability of its methodology and its consistency with the
other evidence in the record.
As a result, “we [are] especially
reluctant to set aside a finding based on the trial court’s
evaluation of conflicting expert testimony.”
AVX
points
to
favorable
evidence
Id.
and
testimony
position, but a showing of clear error requires more.
for
its
We must
be “̒left with the definite and firm conviction that a mistake
has been committed.’”
Easley v. Cromartie, 532 U.S. 234, 242
(2001) (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)).
That is not the case here.
we
the
decline
to
disturb
district
17
court’s
Accordingly,
finding
that
the
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United States did not cause any of the TCE contamination on
Horry
Land
property,
and
therefore
was
not
a
potentially
responsible party for any CERCLA liability on that land.
III.
Finding no error, we affirm the judgment of the district
court.
AFFIRMED
18
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