Borough of Edgewater v. Waterside Constr.

BOROUGH OF EDGEWATER, Plaintiff, v. WATERSIDE CONSTRUCTION, LLC; 38 COAH, LLC; DAIBES BROTHERS, INC.; NORTH RIVER MEWS ASSOCIATES, LLC; FRED A. DAIBES; TERMS ENVIRONMENTAL SERVICES, INC.; ALCOA INC.; ALCOA DOMESTIC, LLC, as successor in interest to A.P. NEW JERSEY, INC.; HUDSON SPA, LLC; JOHN DOES 1100; ABC CORPORATIONS 1-100, Defendants and WATERSIDE CONSTRUCTION, LLC; 38 COAH LLC; DAIBES BROTHERS, INC.; NORTH RIVER MEWS ASSOCIATES, LLC; FRED A. DAIBES, Defendants/ Third-Party Plaintiffs v. NEGLIA ENGINEERING ASSOCIATES, Third-Party Defendants, and ALCOA DOMESTIC, LLC as successor in interest to A.P. NEW JERSEY, INC., Defendant/Third-Party Plaintiff, v. COUNTY OF BERGEN; RIVER ROAD IMPROVEMENT PHASE II, INC.; HUDSON SPA, LLC, Third-Party Defendants.

No. 14-cv-05060

United States District Court, D. New Jersey

August 17, 2021

Not for Publication

OPINION

John Michael Vazquez, U.S.D.J.

Presently before the Court are three motions filed by Defendants Arconic Inc. (f/k/a Alcoa Inc.) and Arconic Domestic, LLC (f/k/a Alcoa Domestic LLC, as successor in interest to A.P New Jersey, Inc.) (collectively “Arconic”): (1) a motion for summary judgment (D.E. 345) against Waterside Construction, LLC (“Waterside”), 38 COAH, LLC (“38 COAH”), North River Mews Associates, LLC (“North River”), Daibes Brothers, Inc., and Fred Daibes (collectively, the “Waterside Defendants”) and River Road Improvement Phase II, Inc. (“RRIP”); (2) a motion for summary judgment (D.E 351) against North River and 38 COAH (the “North River Plaintiffs”) and RRIP; and (3) a motion to strike (D.E 403).

The Court has reviewed all submissions made in support and in opposition to the motions and considered the motions without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R 78.1(b). For the reasons stated below, Arconic's motion for summary judgment at D.E. 345 is GRANTED in part and DENIED in part, and Arconic's motion for summary judgment at D.E. 351 is GRANTED in part and DENIED in part. Arconic's motion to strike at D.E. 403 is DENIED.^[1]

I. BACKGROUND

This matter stems from an allegation that the Waterside Defendants used polychlorinated biphenyl (“PCB”)^[2] contaminated material as fill in a public park project. The park is owned by Plaintiff Borough of Edgewater, but the contaminated materials (or at least some of them) came from a property previously owned by Alcoa Corporation (“Alcoa”), now known as Arconic.

A. Facts^[3]

Arconic constructed and operated an industrial plant and site (the “Alcoa Property”) from 1914-1965 in Edgewater, New Jersey. BE SOMF ¶ 1. A structure referred to as “Building 12” was erected on the site in 1938. BE SOMF ¶ 3. The site was subsequently acquired by Amland Properties Corporation (“Amland”), who then discovered PCB contamination throughout the property. Amland sued Arconic, which resulted in a settlement and the site was conveyed to A.P. New Jersey, Inc. (“AP”), which later became Arconic Domestic, LLC. BE SOMF ¶ 12. The Amland settlement agreement required that the deed contain a legend notice stating that “[t]his property may be contaminated with hazardous substances including Polychlorinated Biphenyls.” BE SOMF ¶ 11.

In 1997, Arconic sold the property to North River, an entity affiliated with Fred Daibes. Pursuant to the terms of the Purchase and Sale Agreement and the related Multi-Party Property Acquisition Agreement, AP agreed to pay RRIP up to $12, 000, 000 for the demolition, removal, and proper disposal of the buildings on the site pursuant to a Remedial Action Work Plan. BE SOMF ¶ 41. Later that year, North River requested permission to postpone the demolition of Building 12. BE SOMF 52. In 2006, the portion of the Alcoa Property containing Building 12 was transferred from North River to 38 COAH, another entity affiliated with Fred Daibes. BE SOMF ¶ 65. In 2010, certain areas of the exterior walls on Building 12 became unstable and fell. BE SOMF ¶ 68.

In 2011, Plaintiff Edgewater looked to improve Veterans Field, a 27-acre public park owned by the borough. BE SOMF ¶¶ 75-76. TERMS, an environmental consulting firm, was retained as a consultant and Licensed Site Remediation Professional for the project. After a bidding process, Waterside, a construction company managed by Fred Daibes, was awarded the contract for the improvement project. BE SOMF ¶¶ 80, 85, 86.

When the amount of fill needed at the Veterans Field project increased, Waterside imported and used the PCB-contaminated material from Building 12 as fill on Veterans Field. BE SOMF ¶ 93. Veterans Field had PCB contamination before the project began, with the highest level being 2.5 parts per million (“ppm”). BE SOMF ¶ 78. Sampling done after the site was closed in October 2013 found that fill materials used throughout the site were contaminated with PCBs, including (1) crushed concrete with levels ranging from 100-350 ppm used for concrete sidewalks and cement pads, and (2) concrete combined with soil with levels ranging from 10-350 ppm used as fill on the field and under paved areas. BE SOMF ¶ 11. Impacted materials were excavated pursuant to an EPA-approved Self-Implementing Plan and disposed off-site. BE SOMF ¶ 115.

II. Procedural History

Edgewater first filed suit on August 12, 2014. D.E. 1. The Arconic Defendants filed a Third-Party Complaint against the County of Bergen and RRIP on December 5, 2014. D.E. 23. On December 5, 2014, the Waterside Defendants filed counterclaims against Arconic for (among others) contribution, indemnification, and claims under CERCLA and the Spill Act. On September 28, 2015, the North River Plaintiffs filed an amended complaint in a related case, 14-8129, asserting claims against Arconic under CERCLA, the Spill Act, breach of contract, negligence, unjust enrichment, and strict liability. 14-cv-8129, D.E. 28. On December 14, 2016, the Court denied Arconic's motion for judgment on the pleadings as to North River and 38 COAH. D.E. 184. On February 27, 2018, the separate matters docketed as 14-8129 and 14-50560 were consolidated. D.E. 255.

Multiple parties have filed multiple motions for summary judgment. The motions are as follows:

• Motion by TERMS for summary judgment against Edgewater (D.E. 339);

• Motion by Hudson Spa for summary judgment against Edgewater (D.E. 342);

• Motion by Arconic for summary judgment against Edgewater (D.E. 344);

• Motion by Arconic for summary judgment against Fred Daibes and North River;

• Motion by Bergen County for summary judgment against Alcoa, North River, and RRIP (D.E. 346);

• Motion by Edgewater for summary judgment against the Waterside Entities on Count XI (D.E. 347);

• Motion by Edgewater for summary judgment against the Waterside Entities on Counts II and VI (D.E. 348);

• Motion by Edgewater for summary judgment against Alcoa on Count I (D.E. 349);

• Motion by Edgewater for summary judgment against the Waterside Entities on Count I (D.E. 350);

• Motion by Arconic for summary judgment against North River, 38 COAH, and RRIP (D.E. 351);

• Motion by Edgewater for summary judgment against Alcoa on Count II (D.E. 352); and

• Motion by Edgewater for summary judgment against the Waterside Entities on Count II (D.E. 353).

This Opinion address only the motions for summary judgment filed by Arconic against the Waterside Defendants, RRIP, and the North River Plaintiffs (D.E. 345, D.E. 351), along with Arconic's motion to strike (D.E. 403).

III. LEGAL STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit under the governing law” and is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.'” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather “to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. “[I]f the non-movant's evidence is merely ‘colorable' or is ‘not significantly probative,' the court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately there is “no genuine issue as to any material fact” if a party “fails to make a showing sufficient to establish the existence of an element...