UNPUBLISHED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Affirmed by unpublished opinion.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. 
2

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Unpublished opinions are not binding precedent in this circuit.
3

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. 
4

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--
5

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. 
6

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. 
7

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 twentyseven 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 
8

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 
9

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 
10

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 
11

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. 
12

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 
13

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. 
14

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 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. 
15

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)
16

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). 
17

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 
18

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