AVX Corporation v. United States , 518 F. App'x 130 ( 2013 )

UNPUBLISHED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Affirmed by unpublished opinion.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.
Ignacia S. Moreno, Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
AVX Corporation sued the United States under the
Comprehensive Environmental Response, Compensation, 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 challenges the factual findings of the
district court. 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 evidence to establish liability. Last, AVX
argues that the district court wrongly admitted the expert
testimony of a government witness. We find no error and
affirm.
3
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”). The remaining parcels were put to commercial
use. The 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--
4
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 as a releasing agent and degreaser to manufacture
ceramic capacitors. AVX stored TCE in 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 on the AXV property through (1) AVX’s practice of
disposing TCE waste directly into the soil; (2) 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. Pursuant to a subsequent “consent order”
between the 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. In
2
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. The United States
contacted DHEC and EPA as soon as it discovered the
contamination, and thereafter undertook remediation efforts
under their supervision. Nevertheless, the 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 was caused by AVX’s activities on the adjoining
parcel. In August 2006 and under the power of the consent
order, DHEC ordered AVX to investigate 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 Horry Land under CERCLA § 107(a), seeking
reimbursement of clean-up costs incurred at the Horry Land
property. Because AVX believed that chemical constituents found
in the groundwater of the Horry Land property were not
“consistent with materials formerly used by AVX at the AVX
property,” AVX concluded that Horry Land Company 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 from the base to the Horry Land
property. J.A. 1592. The district court concurred with the
assessment of Dr. O’Connell, which was “corroborated by the
analysis of an environmental consultant retained by the Air
Force and approved by DHEC and the EPA,” J.A. 1623, that the
hydrogeology of the area--with prevailing groundwater flow
directions to the south, west, or southwest--foreclosed 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 on this testimony, the district court found that the
United States had caused contamination only on 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 “potentially responsible party” within the
meaning of CERCLA. Notwithstanding its § 107(a) conclusion, the
district court adjudicated the United States’ § 113(f)
counterclaim for contribution and determined that the relevant
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equitable factors supported allocating 100% of the response
costs to AVX. 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” to ensure
expert testimony is both reliable and relevant. 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 admit expert testimony by “[a] witness who is
qualified as an expert by knowledge, skill, 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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Rule 702, claiming he lacked “specialized knowledge” in the
field of hydrogeological groundwater migration.
AVX challenges Dr. O’Connell’s qualifications on two
fronts. First, it contends that Dr. O’Connell 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 Dr. O’Connell did have experience in
hydrogeology, AVX argues that TCE has unique chemical
properties, and as a result, only an expert with experience
specific to TCE is qualified to assess its hydrogeological
migration.
As to the first point, AVX undersells Dr. O’Connell’s
expertise. Dr. O’Connell has a Ph.D. in geology and decades of
experience with hydrogeological projects at the water resources
division of the United States Geological Survey and at an
environmental consulting firm. Contrary to 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. See J.A. 352.
In fact, Dr. O’Connell had worked on many projects
installing and monitoring groundwater equipment. He had
extensive experience in “contaminant assessment” and understood
how contaminants--including TCE--“move[] in groundwater.” J.A.
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348-50. Dr. O’Connell, therefore, had experience within the
relevant field of hydrogeology and applied that expertise to
assessing the groundwater contamination around the relevant
Myrtle Beach properties. Cf. Cooper v. Lab. 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 a case-by-case basis--how to
assess witness qualifications. This is because the specialized
knowledge inquiry is one of sufficient reliability, not
specificity. “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 with groundwater contamination to the
particular chemical contaminant TCE. We commit “great
deference” to a district court’s decision on that 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. We disagree. In our view, any divisibility
analysis would have been 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 cost-
recovery. 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 § 113(f)(1) states: “Any person may seek
contribution from any other person who is liable or potentially
liable under [§ 107(a)] . . . . In resolving contribution
claims, the court may allocate response costs 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 waste for which the plaintiff incurred
remediation expense. But the district court reached the
opposite conclusion here, finding that any TCE 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 obviates the need for any further analysis--under
either § 107(a) or § 113(f). 4 Axel Johnson Inc. v. Carroll
4
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)
15
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 only negligible quantities of TCE; (2)
hydrogeological evidence tendered by Dr. O’Connell, which
demonstrated that groundwater did not flow from the United
States’ properties towards the Horry Land property; 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).
16
that the material was ever used at the Air Field--“a ‘sub-depot’
at which only a lower level of aircraft maintenance was
performed.” 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 much effort in its brief challenging these
credibility determinations, but overlooks the 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[.]” United States v. Hall, 664 F.3d 456, 462
(4th Cir. 2012) (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.” Id.AVX points to favorable evidence and testimony for its
position, but a showing of clear error requires more. 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. Accordingly,
we decline to disturb the district court’s finding that the
17
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
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