BOROUGH OF EDGEWATER v. WATERSIDE CONSTRUCTION, LLC et al

Filing 413

OPINION. Signed by Judge John Michael Vazquez on 6/30/2021. (bt, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BOROUGH OF EDGEWATER,
Plaintiff,
Civil Action No. 14-5060
v.
OPINION
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.

John Michael Vazquez, U.S.D.J.
Presently before the Court are four motions (D.E. 347, 348, 350, 353) for summary
judgment filed by Plaintiff Borough of Edgewater (“Edgewater”) against Waterside Construction,
LLC (“Waterside”), 38 COAH, LLC (“38 COAH”), North River Mews Associates, LLC (“North
River”), and Fred Daibes (collectively, the “Waterside Defendants”). The Court reviewed all
submissions made in support and in opposition to the motion and considered the motion without
oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated
below, Edgewater’s motions for summary judgment at D.E. 347 and D.E. 348 are DENIED, while
Edgewater’s motions for summary judgment at D.E. 350 and D.E. 353 are DENIED in part and
GRANTED in part. 1

1

The current motions are part of a large number of motions for summary judgment filed in this
matter. All pending motions are listed in the Procedural History section of this Opinion. If the
Court were to address all motions in a single opinion, the results would be unwieldly. As a result,
the Court addresses the motions individually or, as here, in a group. The Court also does not repeat
each and every alleged fact in each opinion. Instead, the Court focuses on the facts pertinent to
each motion (or motions) as asserted by the parties to the motion(s). Therefore, if the facts in one
opinion appear to be distinguishable from facts in another opinion, it is because those are the facts
asserted by the party or parties in its/their respective motions.

2

I.

BACKGROUND
A. Facts 2
This matter stems from an allegation that Waterside Defendants used polychlorinated

biphenyl (“PCB”) 3 contaminated material as fill in a public park project. The park is owned by
Plaintiff Edgewater, but the contaminated materials (or at least some of them) came from a
property previously owned by Alcoa Corporation (“Alcoa”).
1. The Alcoa Property
Alcoa, a party in this case, constructed and operated an industrial plant (the “Alcoa
Property”) from 1914-1965 in Edgewater, New Jersey. BE SOMF ¶ 1. A structure, referred to as
“Building 12,” was constructed on that 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 Alcoa, which resulted in a settlement and the site was

2

Both parties filed Statements of Material Facts. Edgewater’s statement (D.E. 319-1) will be
referred to as “BE SOMF,” while Waterside’s statement (D.E. 328-1) will be referred to as “W
SOMF.” The Court notes that Waterside failed to follow the proper procedure set forth in Local
Rule 56.1—instead of citing to the record when disputing a specific fact, Waterside cited generally
to its own statement of material facts. The Court has done its best to follow Waterside’s factual
disputes, but to the extent the Court is unable to discern what in the record causes Waterside to
dispute a specific fact, that fact will be deemed undisputed. See Nike, Inc. v. E. Ports Custom
Brokers, Inc., No. 2:11-CV-4390-CCC-MF, 2018 WL 3472628, at *1, n.1 (D.N.J. July 19, 2018)
(where non-moving party did not provide citations to specific facts of record in its responsive
statement, Court deemed all statements not properly denied by non-moving party as admitted);
Friedman v. Bank of Am., N.A., No. CIV.A. 09-2214 JBS, 2012 WL 1019220, at *6, n.2 (D.N.J.
Mar. 26, 2012) (“[T]he court will consider any statement of fact which was not denied by the
Plaintiffs with a citation to the record as undisputed for the purposes of this motion for summary
judgment.”).
3

According to the Environmental Protection Agency, PCBs are a group of man-made organic
chemicals consisting of carbon, hydrogen and chlorine atoms. United States Environmental
Protection
Agency,
Learn
about
Polychlorinated
Biphenyls
(PCBs),
https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls-pcbs.
PCBs have been
demonstrated to cause a variety of adverse health effects. Id.

3

conveyed to an Alcoa entity, A.P. New Jersey, Inc. (“AP”), which later became Arconic Domestic
LLC. BE SOMF ¶ 12. The Amland settlement agreement required that the deed of conveyance
contain a legend notice stating that “[t]his property may be contaminated with hazardous
substances including Polychlorinated Biphenyls.” BE SOMF ¶ 11.
In 1997, Alcoa sold the property to North River, an entity affiliated with Fred Daibes.
Pursuant to the terms of the Purchase and Sale Agreement (“PSA”) and the related Multi-Party
Agreement (“MPA”), AP agreed to pay River Road Improvement Phase II, Inc. (“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.
2. Veteran’s Field in Edgewater
In 2011, Plaintiff Edgewater sought 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. The parties dispute whether this was done with TERMS’ knowledge and/or approval.
Edgewater further asserts that on September 7, 2013, after advising Neglia, the engineer assigned

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to the project, that no work would be performed over the weekend, Waterside dumped unapproved
fill on the site and then covered the fill when the Neglia supervisor arrived to the site. BE SOMF
¶¶ 95-98. Edgewater alleges that Waterside continued to import contaminated materials from
September 7, 2013 to October 3, 2013, when TERMS issued a letter advising of the PCB
contamination and closed the Veterans Field site for an assessment. BE SOMF ¶¶ 106-107.
Waterside disputes this.
There was some PCB contamination present at Veterans Field 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.
To recap, North River was the owner of the Alcoa Property beginning in 1997. BE SOMF
¶ 36. 38 COAH was the owner of the portion of the Alcoa Property containing Building 12 and
the owner of the contaminated building materials discharged at Veterans Field. BE SOMF ¶ 65.
Waterside was the contractor charged with remediating Veterans Field. BE SOMF ¶ 85. Though
not a party to the instant motions, TERMS was an environmental consulting group retained by
Edgewater in 2011 to conduct an initial investigation of the site to assess historic contaminated fill
at Veterans Field. In or about 2012, TERMS agreed to serve as the Licensed Site Remediation
Professional for the Veterans Field Project. BE SOMF ¶¶ 76, 80.

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B. Procedural History
Edgewater first filed suit on August 12, 2014. D.E. 1. The Alcoa Defendants filed a ThirdParty Complaint against the County of Bergen and RRIP on December 5, 2014. D.E. 23. The
Waterside Defendants filed a Third-Party Complaint against Neglia on December 5, 2015. D.E.
24. On February 27, 2018, the separate matters docketed as 14-8129 and 14-50560 were
consolidated. D.E. 255. On March 19, 2018, Edgewater filed its Fifth Amended Complaint, which
is the operative complaint in this matter. D.E. 256 (“Complaint”). The claims contained in that
Complaint are as follows:
Count I:

Contribution under the Spill Act against Waterside, Fred Daibes, Daibes
Brothers, 38 COAH, North River, Alcoa, TERMS, Alcoa Domestic,
Hudson Spa, John Does 1-100, and ABC Corporations 1-100;

Count II:

Cost Recovery under CERCLA against Waterside, Fred Daibes, Daibes
Brothers, 38 COAH, North River, Alcoa, TERMS, Alcoa Domestic,
Hudson Spa, John Does 1-100, and ABC Corporations 1-100;

Count III:

Breach of contract against Waterside;

Count IV:

Fraud against Waterside and Fred Daibes;

Count V:

Negligence against Waterside;

Count VI:

Negligence against Fred Daibes, Daibes Brothers, North River, and 38
COAH;

Count VII:

Negligence against Alcoa, Alcoa Domestic, and Hudson Spa;

Count VIII: Unjust Enrichment against and Waterside, Fred Daibes, North River,
Daibes Brothers, 38 COAH, Alcoa, Alcoa Domestic, Hudson Spa;
Count IX:

Strict Liability against Alcoa, Alcoa Domestic, and Hudson Spa;

Count X:

Strict Liability against Waterside, Fred Daibes, Daibes Brothers, North
River, and 38 COAH;

Count XI:

Consumer Fraud Act claim against Waterside and Fred Daibes;

Count XI:

Breach of contract against TERMS; and

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Count XII:

Negligence against TERMS.

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 filed by Edgewater for summary judgment against
the Waterside Entities. (D.E. 347, 348, 350, 353).
II.

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

7

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 essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.

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III.

ANALYSIS
A. CERCLA
Edgewater has moved for summary judgment against Waterside, 38 COAH, North River,

and Fred Daibes on Count II, a claim for cost recovery under CERCLA. 4 D.E. 353.
1. CERCLA Overview
Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), codified as 42 U.S.C. § 9601 et seq., “to promote the timely cleanup
of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those
responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S.
599, 602 (2009) (internal quotations omitted). “CERCLA provides two mechanisms that allow
potentially responsible parties (“PRPs”) to recover costs they have expended to decontaminate a
polluted site: § 107(a) cost recovery claims and § 113(f) contribution claims.” Agere Sys., Inc. v.
Advanced Envtl. Tech. Corp., 602 F.3d 204, 216 (3d Cir. 2010). Section 107(a), in part, allows
private parties to hold PRPs responsible for “any other necessary costs of response incurred by any
other person” consistent with CERCLA. 42 U.S.C. § 9607(a)(4)(B); Agere Sys., Inc., 602 F.3d at
225.
Under CERCLA, PRPs are
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged
for disposal or treatment, or arranged with a transporter for transport
for disposal or treatment, of hazardous substances owned or
4

In this Section, Plaintiff’s Brief in Support (D.E. 353-1) will be referred to as “Pl. Brf.”;
Defendant’s Brief in Opposition (D.E. 377) will be referred to as “Def. Brf.”; and Plaintiff’s Brief
in Reply (D.E. 397) will be referred to as “Pl. Reply.”

9

possessed by such person, by any other party or entity, at any facility
or incineration vessel owned or operated by another party or entity
and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities, incineration vessels
or sites selected by such person, from which there is a release, or a
threatened release which causes the incurrence of response costs, of
a hazardous substance[.]
42 U.S.C. § 9607(a)(1)-(4); see also Litgo New Jersey Inc. v. Comm'r New Jersey Dep't of Envtl.
Prot., 725 F.3d 369, 379 (3d Cir. 2013). The first two categories are commonly referred to as
“owner or operator,” the third as “arranger,” and the fourth as “transporter.”
“CERCLA liability may be inferred from the totality of the circumstances; it need not be
proven by direct evidence.” United States v. Cornell-Dubilier Elecs., Inc., No. 12-5407 JLL, 2014
WL 4978635, at *8 (D.N.J. Oct. 3, 2014) (citing Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886,
892 (10th Cir. 2000)) (internal quotations omitted). “When determining CERCLA liability, ‘there
is nothing objectionable in basing findings solely on circumstantial evidence, especially where the
passage of time has made direct evidence difficult or impossible to obtain.’” Niagara Mohawk
Power Corp. v. Chevron USA, Inc., 596 F.3d 112, 131 (2d Cir. 2010) (quoting Franklin County
Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 547 (6th Cir. 2001)).
Edgewater first argues that Veterans Field is a “facility” and that there was a “release.” A
facility is defined as follows:
(A) any building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment, ditch, landfill,
storage container, motor vehicle, rolling stock, or aircraft, or (B) any
site or area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any vessel.
42 U.S.C. § 9601(9). 42 U.S.C. § 9601(9)(B); see also New York v. Shore Realty Corp., 759 F.2d
1032, 1043 n.15 (2d Cir. 1985) (noting that “CERCLA defines the term ‘facility’ broadly to include

10

any property at which hazardous substances have come to be located”). Imposition of liability
under CERCLA requires evidence of a release or threatened release of hazardous substances at the
facility. A “release” includes the following:
[A]ny spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing any
hazardous substance or pollutant or contaminant)
42 U.S.C. § 9601 (22). PCBs are denominated a hazardous substances in § 302.4. 40 C.F.R. §
302.4, Table 302.4.
The Waterside Defendants do not dispute Edgewater’s arguments that (1) Veterans Field
is a “facility” or that (2) a “release” occurred at Veterans Field. Instead the Waterside Defendants
argue that they were not owners, operators, arrangers, or transporters under CERCLA. The Court
will address each category.
2. Potentially Responsible Parties
a. Operator Liability
Edgewater argues that both Fred Daibes and Waterside are liable as “operators.” Under
the statute, an operator is a person who “controlled activities at such facility.” 42 U.S.C. §
9601(20)(A). According to the Supreme Court, an operator is “simply someone who directs the
workings of, manages, or conducts the affairs of a facility.” United States v. Bestfoods, 524 U.S.
51, 66 (1998). In Bestfoods, the critical issue was “whether a parent corporation that actively
participated in, and exercised control over, the operations of a subsidiary may, without more, be
held liable as an operator of a polluting facility owned or operated by the subsidiary.” 524 U.S. at
55. The Supreme Court recognized that a parent company could be derivatively liable under
CERCLA for the acts of its subsidiary by piercing the corporate veil. Id. at 62. The Bestfoods

11

Court also explained that a parent company could be directly liable under CERCLA if it was in
fact an operator of the facility. Id. at 65. However, the Court held that “[t]o sharpen the definition
for purposes of CERCLA's concern with environmental contamination, an operator must manage,
direct, or conduct operations specifically related to pollution, that is, operations having to do with
the leakage or disposal of hazardous waste, or decisions about compliance with environmental
regulations.” Id. at 66-67 (emphasis added). The Bestfoods standard looks beyond general control
of a company to specific control over pollution-related activity at a facility. Id. at 66-67.
Several courts, including the Third Circuit, have applied the Bestfoods definition of
operator outside of the parent-subsidiary context. See, e.g., Litgo New Jersey Inc. v. Comm'r New
Jersey Dep't of Envtl. Prot., 725 F.3d 369, 381-83 (3d Cir. 2013) (using Bestfoods to determine
whether an independent company, not the parent company, was liable as an operator for its active
remediation efforts at a facility). 5 And at least one court has applied Bestfoods to find that a
shareholder liable under CERCLA as an operator. See United States v. Lawrence Aviation Indus.,
Inc., No. 06-CV-4818, 2019 WL 1259791, at *15 (E.D.N.Y. Mar. 19, 2019).
i. Waterside
Edgewater argues that Waterside was an operator because it conducted operations
specifically related to the disposal of Building 12’s hazardous waste. Pl. Brf. at 25. Waterside

5

In Litgo, the district judge applied the Bestfoods standard to the United States in determining
whether it was liable as an operator under CERCLA for its relationship with plaintiff’s aircraft
manufacturing facility during and after World War II. 2010 WL 2400388, at *6-7, 23. After
recognizing that “[t]he United States Defendants' role in the operations of [plaintiff’s aircraft
manufacturing facility] was limited to purchasing aircraft parts from the company and conducting
periodic inspections to ensure that the site was maintained in compliance with industry standards,”
the district court concluded that “[t]he United States Defendants did not manage, direct, or conduct
any of the day-to-day operations or manage, direct, or conduct any activities that had to do with
the leakage or disposal of hazardous wastes” at the facility. Id. at 24. As a result, the government
was not liable as an operator. Id.

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responds that it was following TERMS’ direction, and that it therefore did not “manage, direct, or
conduct operations.” Def. Brf. at 17. In support of Waterside’s contention that it sought
permission from TERMS to utilize material from the former Alcoa Property, Waterside cites to
the deposition testimony of Fred Daibes, the managing member and majority shareholder of
Waterside (BE SOMF ¶ 132), Mark Iafelice, 6 and Matthew Vereb, Waterside’s job supervisor at
Veterans Field (BE SOMF ¶ 131). Daibes testified that Waterside sought permission from TERMS
to utilize the Alcoa material, but did not seek permission from TERMS to utilize any other recycled
concrete aggregate (“RCA”). Corriston Cert. (D.E. 355), Ex. Y at T. 79:15-20.

Daibes also

testified that all the fill material brought to the site was required to be tested and that the Alcoa
material was the only material that was not tested. Corriston Cert. (D.E. 355), Ex. Y at T. 80:1120. Vereb testified that Waterside advised that the source of the material was the Alcoa Property
but did not advise that the material contained PCBs. Vereb also indicated that he thought that there
had been discussions indicating that testing would not be required since the material would be
installed under a cap, but then clarified that he was not aware of any written approval from TERMS
permitting Waterside to use the RCA material. Corriston Cert., Ex. XXX at T. 93:25-96:21.
While the parties dispute whether TERMS actually approved the use of the RCA from
Building 12 at Veterans Field, the dispute is not material. Waterside relies on Lentz, asserting that
it is not liable as an operator because it did not have the power to control the disposal actives.
Lentz v. Mason, 961 F. Supp. 709, 716 (D.N.J. 1997). The facts of Lentz, however, have little
bearing on Waterside’s activity here. In Lentz, a landowner sued a realtor after a tenant violated

6

While Mark Iafelice’s deposition is ostensibly attached to the Bernstein Certification at Exhibit
VV, the Certification skips this exhibit. The Court is therefore unable to review the deposition
testimony cited as Bernstein Cert. (D.E. 384), Ex. VV at T. 42:22-43:22.

13

CERCLA by storing torpedo tubes on the landowner’s property.

Id.

The realtor’s sole

involvement was in locating the tenant for the landowners. Id. The broker played no role in the
disposal of hazardous waste at the property. Id. The Lentz court therefore held that the realtor was
not an operator. Id.
Here, Waterside is a contractor who managed, directed, or conducted operations
specifically related to pollution, including the disposal of hazardous waste. Waterside, even if it
were acting with TERMS’ “approval,” still conducted operations specifically related to pollution
at Veterans Field. See Bestfoods, 524 U.S. at 66. Even resolving the factual disputes in
Waterside’s favor, Waterside was the entity who selected the Building 12 material and disposed
of it at Veterans Field. BE SOMF ¶¶ 97, 106. Waterside has not asserted that TERMS directed it
to import contaminated material. Further, to the extent Waterside is asserting that TERMS’
involvement would relieve Waterside of fault, CERCLA imposes strict liability and is not
dependent on a finding of fault. Litgo New Jersey Inc. v. Comm'r New Jersey Dep't of Env't Prot.,
725 F.3d 369, 381 (3d Cir. 2013); United States v. USX Corp., 68 F.3d 811, 815 (3d Cir. 1995), as
amended (Dec. 14, 1995) (“Liability of responsible parties is strict, i.e., not dependent on a finding
of fault.”). See also Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342
(9th Cir. 1992) (denying motion to dismiss “operator” claim against contractor who excavated
tainted soil, moved it, and spread it over uncontaminated portions of property); Ganton Techs.,
Inc. v. Quadion Corp., 834 F. Supp. 1018 (N.D. Ill. 1993) (denying motion to dismiss “operator”
claim against contractors hired for clean up who contaminated previously uncontaminated areas).
Because there are no genuine disputes of material fact, the Court grants summary judgment in
favor of Edgewater as to Waterside’s CERCLA liability as an operator.

14

ii. Fred Daibes
Fred Daibes is the managing member and majority shareholder of North River, 38 COAH,
and Waterside. BE SOMF ¶ 39, 132. The parties’ factual dispute boils down to whether, and to
what extent, Fred Daibes himself played a role in using the Building 12 material at Veterans Field.
According to Edgewater, Daibes was the point of contact for the remediation of the Alcoa Property.
BE SOMF ¶ 131-32. Edgewater further claims that Daibes gave the approval of the use of the
Building 12 RCA material and did not advise Vereb that the material contained PCBs. BE SOMF
¶ 131. Waterside submits that Mark Iafelice instructed Waterside Construction employees to bring
RCA from Building 12 and that Iafelice did not receive authorization from Daibes. W SOMF ¶
87.
During his deposition and in response to whether Daibes approved the use of the material,
Vereb responded “yes” and stated that Daibes did not advise him that it contained PCBs. Corriston
Cert., Ex. XXX, at T. 72:5-22. Kenneth Schiller, a Waterside employee (Corriston Cert. Ex. SSS,
(Menzella Dep.) at T. 40:5-19), stated that he authorized the bringing of the Building 12 material
to Veterans Field. Schiller did not recall anyone else instructing him to do so but indicated that
Vereb “may have mentioned” doing so and that Vereb was responsible for determining what
material should be brought to Veterans Field. Musso Cert. (D.E. 397-2), Ex. A, at T. 42:16-45:11.
Iafelice testified that Vereb and Schiller were involved in the decision to use that Building 12 RCA
as fill at Veterans Field. In response to the question whether Daibes wanted the RCA material
used on Veterans Field, Iafelice responded “not to my knowledge[.]” Musso Cert. (D.E. 397-2),
Ex. B, at T. 110:24-112:1.
Daibes testified that the ultimate decision making as to 38 COAH and North River is his
alone. Corriston Cert, Ex. Z, at T. 32:6-15; 33:19-22. He also testified that for Waterside, he

15

makes “all the big decisions” and responded affirmatively to the question “the buck stops with
you?” Corriston Cert, Ex. Z, at T. 36:8-13. Daibes added that he was aware Waterside was
bringing RCA from the Alcoa Property to Veterans Field because “his people,” “Kenny, Mark,
whoever,” told him. Musso Cert. (D.E. 397-2), Ex. C, at T. 102:25-103:25.
However, “knowledge of a practice is not the same as undertaking that practice for the
purposes of operator liability under CERCLA.” PPG Indus. Inc. v. United States, 957 F.3d 395,
404 (3d Cir. 2020). Here, because the testimony conflicts as to whether the Building 12 material
was brought to Veterans Field at the direction of Fred Daibes, the Court denies summary judgment.
See Bestfood at 66-67; see also City of New York v. N.Y. Cross Harbor R.R. Terminal Corp., No.
98-CV-7227, 2006 WL 140555, at *14 (E.D.N.Y. Jan. 17, 2006) (denying summary judgment
against owner and CEO because there was an issue of material fact as to the depth of his
“involvement in environmental compliance and hazardous waste disposal”).
b. Arranger Liability
Edgewater argues that Fred Daibes, Waterside, Daibes Brothers, North River, and 38
COAH (the “Arranger Defendants”) are liable as arrangers under 42 U.S.C. § 9607(a)(3). Pl. Brf.
at n.1, 27. “[U]nder the plain language of the [CERCLA] statute, an entity may qualify as an
arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.”
Burlington, 556 U.S. at 611. “[K]nowledge alone is insufficient.” Burlington, 556 U.S. at 612.
In addition, “[o]wnership or possession of the hazardous substance must be demonstrated.”
Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 677 (3d Cir. 2003). Arranger liability
does not attach “when the disposal occurs as a peripheral result of the legitimate sale of an unused,
useful product.” Burlington, 556 U.S. at 611. In addition to ownership or possession, an arranger
also must have “either control over the process that results in a release of hazardous waste or

16

knowledge that such a release will occur during the process.” Morton, 343 F.3d at 677. Arranger
liability is to be broadly construed as “only through a broadly read scheme of arranger liability
could Congress hold those actually responsible for any damage, environmental harm, or injury
from chemical poisons for the cost of their actions.” EPEC Polymers, Inc. v. NL Indus., Inc., No.
CIV.A. 12-3842 MAS, 2013 WL 2338711, at *7 (D.N.J. May 28, 2013) (citing Morton, 343 F.3d
at 676) (internal quotations and alterations omitted). The most important factors in determining
arranger liability are (1) ownership or possession; and (2) knowledge; or (3) control, id., coupled
with the entity taking “intentional steps to dispose of [the] hazardous substance.” Burlington, 556
U.S. at 611 (citation omitted).
Waterside argues that it is not liable because the Building 12 RCA was not considered
waste by Waterside at the time the material was brought to Veterans Field and Waterside therefore
did not intend to dispose of hazardous material. Def Brf. at 18-19. In Burlington Northern, the
Supreme Court effectively decided that arranger liability creates an exception to the statute's strict
liability provisions. See Town of Islip v. Datre, 245 F. Supp. 3d 397, 418 (E.D.N.Y. 2017) (citing
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009). As Datre noted, the
Burlington Northern decision did not address whether an alleged arranger must know whether the
material was hazardous. Id. at 419. In fact, “few courts have addressed whether an arranger
defendant must know that the material in question is hazardous.” Id. at 422. Datre, to which both
sides cite, explained that knowledge is relevant to the inquiry. Darte, relying heavily on Appleton
Papers Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2012 WL 2704920 (E.D. Wis. July 3,
2012), reasoned that CERCLA is intended to deter parties from polluting and that a party cannot
be deterred from such behavior if it did “not even realize it was polluting.” Datre, 245 F. Supp at
*423 (citing Appleton Papers, at *11). Datre indicated that for arranger liability to apply, “a

17

plaintiff must establish that the defendant who arranged for the disposal of material knew, or
should have known, that the material contained hazardous substances. Id. at 424 (emphasis added).
The Court finds Datre persuasive and adopts its standard here.
Waterside asserts that the only material that it knew contained hazardous material stemmed
from the foundation walls at Building 12 and that it was not aware that the fill material coming
from the interior of Building 12 was contaminated until it was later informed by TERMS. W
SOMF ¶ 94. Waterside supports this mainly via Fred Daibes’ deposition testimony. Waterside
SOMF ¶¶ 94, 96, 97. A court deciding a motion for summary judgment is not required to accept
unsupported, self-serving testimony as evidence sufficient to create a jury question. Hammonds
v. Collins, Civ. No. 12-236, 2016 WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing Brooks v.
Am. Broad. Co., 999 F.2d 167, 172 (6th Cir. 1993)); see also Brooks v. Kerry, 37 F. Supp. 3d 187,
210 (D.D.C. 2014) (non-movant “cannot defeat a summary judgment motion on the basis of such
self-serving testimony alone.”).
As affirmative proof, Edgewater indicates that North River paid $8 million for the Alcoa
Property and its structures. BE SOMF 41. Edgewater asserts that the relatively low price of the
1997 Agreements (the PSA and MPA) indicates North River knew the Alcoa Property’s structures
were waste. Edgewater continues that per the terms of the 1997 agreements, RRIP was to receive
up to $12 million from the Alcoa Entities for demolishing, treating, and removing all structures on
the Alcoa Property. BE SOMF

41. Subsequently, Enviro-Sciences advised the New Jersey

Department of Environmental Protection (“NJDEP”) that Building 12 was to remain in place. BE
SOMF

59. As a result, the NJDEP approved the temporary measure of capping the Building 12

walls subject to a deed notice with the following restrictions: (1) no public access to Building 12;
(2) the painted walls could not be modified without prior NJDEP approval; and (3) no

18

development or modification of the site was permitted without prior NJDEP approval. BE
SOMF

61.
In 2010, Enviro-Sciences wrote to NJDEP, indicating that Enviro-Sciences was retained

by 38 COAH “to evaluate the Deed Notice that was established for contamination in the walls of
Building 12.” Corriston Cert., Ex. CCC. The letter stated that the exterior walls on Building 12
became unstable and fell, and that the fallen walls were collected and stored inside Building 12.
Id. The letter continued that “[i]f in the future Building 12 is demolished and (sic) the walls
containing PCBs will be sampled and disposed of to a licensed facility under the supervision of
the Department of Health.” Id. Though Edgewater cites to this 2010 letter, Edgewater has not
pointed the Court to a specific portion of the letter that discussed Building 12’s interior. BE SOMF
¶ 68 (citing Corriston Cert., Ex. CCC). The letter specifically stated that the exterior walls became
unstable and fell, were stored on a tarp, and were sampled. Ex. CCC at pg. 2. Edgewater also
cites to an analytical data report dated April 4, 2011, though it is not clear what Building 12
material (interior, exterior, or otherwise), the report is analyzing. Corriston Cert., Ex. DDD.
In an April 11, 2011 letter to Daibes Enterprises, Enviro-Sciences provided a revised
proposal to sample and dispose of the PCB impacted concrete associated with Building 12.
Corriston Cert., Ex. EEE. The letter stated that waste classification samples were obtained and
showed PCB concentrations of 91 ppm. Id. It continued that “the bricks and concrete will have
to be disposed of as hazardous material.” Id. The letter does not distinguish between the interior
and exterior walls of Building 12. Id. On September 17, 2020, the NJDEP informed Glen Donlon
of Daibes Brothers that it had approved the Draft Termination of Deed Notice for Building 12.
Corriston Cert., Ex. FFF. The letter explained that the NJDEP no longer regulated the remediation
of building interiors unless there is a known or suspected discharge of a hazardous substance that

19

may result in a discharge to the environment. Id. However, NJDEP required that the Remedial
Action Outcome include an insert stating, “Building Interiors Not Addressed,” which was
“intended to clarify that the response action outcome did not address contamination that may be in
the building.” Id.
There is a genuine dispute of material facts as to whether any of the Waterside Entities
knew or should have known that the interior walls of Building 12 were contaminated. Summary
judgment is denied on the theory of arranger liability for this reason. See UPMC v. CBIZ, Inc.,
436 F. Supp. 3d 822, 842 (W.D. Pa. 2020) (“[A] party's knowledge is [usually] a question of fact
for the jury to determine.”).
c. Transporter Liability
Edgewater seeks to impose CERCLA liability on Waterside as a “transporter” under 42
U.S.C. § 9607(a)(4). Transporter liability is established by showing that a person accepted
hazardous substances for transport and either selected the disposal facility or had substantial input
into deciding where the hazardous substance should be disposed. United States v. USX Corp., 68
F.3d 811, 820 (3d Cir. 1995), as amended (Dec. 14, 1995)).
Defendants have not cited any authority, nor otherwise argued, that transporter liability
requires the same considerations as arranger liability. See Datre, 245 F. Supp. 3d at 423 (citing
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009)). The genuine dispute of
material fact as to the Waterside Entity’s knowledge of contamination, discussed above, therefore
does not preclude a finding of transporter liability. Waterside argues that it was Edgewater,
through TERMS and Neglia, that maintained control of the Building 12 disposal, and that the
Waterside Defendants are therefore not liable. Waterside does not dispute that it transported and
disposed of the Building 12 materials at Veterans Field. BE SOMF ¶ 119, 120, 130. Waterside

20

has not cited to any binding or persuasive authority that demonstrates that the involvement of
TERMS or Neglia negates Waterside’s own liability. Even if TERMS did approve the use of the
Building 12 material, Waterside has not disputed that it chose the material and Veterans Field as
the disposal site. Having transported the contaminated Building 12 material to Veterans Field,
Waterside is liable as a transporter, and the Court grants summary judgment in Edgewater’s favor
on its CERCLA claim against Waterside on a theory of transporter liability. 7
d. Owner Liability
Edgewater moves for the imposition of “owner” liability against 38 COAH and North
River. Section 107(a) of CERCLA provides in pertinent part that an owner or operator shall be
liable for “any other necessary costs of response incurred by any other person consistent with the
national contingency plan[.]” 42 U.S.C. § 9607(a). Edgewater argues that 38 COAH qualifies as
both a current and former owner under 42 U.S.C. § 9607(a)(1) and (a)(2). Under subsection (a)(1),
Edgewater argues that it is sufficient that 38 COAH owned the Alcoa Property in 2010, when
Building 12 began to crumble, and in 2013, when Building 12 was demolished and material was
taken to Veterans Field. Pl. Brf. at 19; BE SOMF ¶ 65, 68. Under subsection (a)(2), Edgewater
claims that it is sufficient that 38 COAH owned the Alcoa Property when Building 12 was
demolished and taken to Veterans Field. Pl. Brf. at 19.
It is undisputed that 38 COAH owned Building 12 when it was demolished and brought to
Veterans Field, that a release occurred at Veterans Field, and that Edgewater—not 38 COAH—

7

It is not clear whether Edgewater also moved for summary judgment as to Fred Daibes on a
theory of transporter liability. Edgewater’s opening brief discusses Daibes’ involvement, but
Edgewater does not respond in its reply brief to the Waterside Defendant’s argument that Daibes
is not liable as a transporter. To the extent Edgewater moved for summary judgment as to Daibes
on a theory of transporter liability, summary judgment is denied there is a genuine issue of material
fact as to the involvement and approval of Daibes.

21

owns Veterans Field. This Court first finds that both Building 12 and Veteran’s Field can both be
facilities. See EPEC Polymers, Inc. v. NL Indus., Inc., No. CIV.A. 12-3842 MAS, 2013 WL
2338711, at *6 (D.N.J. May 28, 2013) (“Although [the site where the hazardous substance was
disposed] may arguably be considered a ‘facility’ as well, that fact does not require dismissal of
Plaintiff's owner/operator theory.”). The question then becomes whether it is necessary for owner
liability that the discharger owned the “facility” at which the discharge occurred and where cleanup
costs were incurred.
Owner liability straight-forwardly attaches to the owner of the facility at which the
discharge occurred and cleanup costs were incurred. Litgo New Jersey Inc. v. Comm'r New Jersey
Dep't of Env't Prot., 725 F.3d 369, 379 (3d Cir. 2013) (describing owner liability as applying to
“current owners and operators of the ‘facility’ at which the contamination occurred”) (emphasis
added). The more difficult question arises when a discharge at the owner or operator’s facility
results in cleanup costs on a property other than the facility itself.
In EPEC Polymers, a plaintiff sued after hazardous waste generated at the defendant’s site
was dumped into a bordering river and contaminated plaintiff’s property. EPEC Polymers, Inc. v.
NL Indus., Inc., No. CIV.A. 12-3842 MAS, 2013 WL 2338711, at *4 (D.N.J. May 28, 2013). The
defendants argued at the motion to dismiss stage that, because the facility they owned was not the
facility which incurred response costs, they were not liable as “owners” under CERCLA. Judge
Shipp disagreed, ruling that the defendant's role as owner of the initial site from which the
contaminated materials came sufficiently alleged a prima facie case. Id. Judge Shipp reasoned
that the fact that the two sites were not adjacent to each other was irrelevant because they could be
considered “functionally adjacent” due to sharing a common border via the river. Id. at *6. Judge
Shipp also found a similarity to cases involving “the flow of water due to gravity or erosion”

22

transferring hazardous materials, which he found applicable even though a third-party may have
spread the contamination further. Id. at *6. For comparison, he cited to Beazer, in which the
defendant dumped hazardous waste into the water flowing between his property and the plaintiff’s,
and Nutra Sweet, in which the defendant was liable for hazardous waste after contaminated mop
water was dumped onto adjacent land and had traveled via groundwater flow. See Louisiana–Pac.
Corp. v. Beazer Materials & Servs., Inc., 811 F.Supp. 1421, 1431 (E.D.Cal.1993); NutraSweet Co.
v. X-L Eng'g Corp., 933 F. Supp. 1409, 1422 (N.D. Ill. 1996), aff'd sub nom. NutraSweet Co. v. XL Eng'g Co., 227 F.3d 776 (7th Cir. 2000).
Here, the two sites are not adjacent, in reality or functionally. The release activity is also
distinguishable: in EPEC Polymers, the defendants had released hazardous waste from their
property directly into the river, where it then traveled to the plaintiff’s property. Such a release
more analogous to cases involving the flow of water than the circumstances presented here.
Edgewater has not cited, nor has the Court found, any authority in which owner/operator liability
has been extended the factual circumstances presented in this case. The Court is concerned that if
it adopted Edgewater’s argument, arranger liability (and its corresponding intent requirement)
would be superfluous, at least as to owners/operators. 8 In short, while there was a discharge at
Building 12, that is not the discharge that is at issue; instead, it is the discharge at Veteran’s Field
that resulted in the cleanup costs at issue. The Court therefore denies Edgewater’s motion as to 38
COAH.
Edgewater also argues that North River is responsible as an owner because in 1997-1998,
North River’s environmental consultant removed floor panels from Building 12 and material was

8

Edgewater also brought a claim against 38 COAH under a theory of arranger liability, which is
discussed above.

23

disposed of in a secure landfill or used as a road base. Pl. Brf. at 20. The removal of floor panels
was not the release which caused Edgewater to incur the cleanup costs here. Edgewater has not
addressed this issue in its reply brief or cited to any caselaw supporting North River’s liability. As
such, the Court denies summary judgment as to North River.
B. Spill Act
Edgewater also moves for summary judgment on Count I, seeking contribution under the
Spill Act against Waterside, Fred Daibes, Daibes Brothers, 38 COAH, and North River. 9 D.E.
350. The Spill Act is the New Jersey analog to CERCLA and specifically incorporates CERCLA’s
definition of hazardous substances. Like CERCLA, the Spill Act permits courts to “allocate the
costs of cleanup and removal among liable parties using such equitable factors as the court
determines are appropriate.” Litgo New Jersey Inc. v. Comm'r New Jersey Dep't of Env't Prot.,
725 F.3d 369, 392 (3d Cir. 2013). The Spill Act imposes strict joint and several liability on any
person who has discharged a hazardous substance. NJDEP v. Gloucester Environmental Mgmt.
Servs., Inc., 821 F. Supp. 999, 1009 (D.N.J. 1993). Liability under the Spill Act arises “whether
the discharge was the result of ‘intentional or unintentional’ acts or omissions. Morris Plains
Holding VF, LLC v. Milano French Cleaners, Inc., No. A-0604-16T1, 2018 WL 1882956, at *1
(N.J. Super. Ct. App. Div. Apr. 20, 2018) (citing N.J.S.A. 58:10-23.11b).
In addition to liability as a direct discharger, the Spill Act provides that a person who is “in
any way responsible for any hazardous substance” is strictly liable, upon its discharge, for “all
cleanup and removal costs no matter by whom incurred.” New Jersey Dep't of Env't Prot. v.

9

In this section, Plaintiff’s brief in support of its motion for summary judgment as to the Spill Act
claims against the Waterside Defendants (D.E. 350) will be referred to as “Pl. Brf.”; the Waterside
Defendants’ brief in opposition (D.E. 370) will be referred to as “Def. Brf.”; and Plaintiff’s brief
in reply (D.E. 396) will be referred to as “Pl. Reply.”

24

Dimant, 51 A.3d 816, 829 (2012) (citing N.J.S.A. 58:10–23.11g(c)(1)). A person is “in any way
responsible” for a discharge if he or she had “control over the hazardous substance that caused the
contamination.” 760 New Brunswick Urb. Renewal Ltd. Liab. Co. v. Navigators Specialty Ins.
Co., No. CV 20-5877 (FLW), 2021 WL 287876, at *8 (D.N.J. Jan. 28, 2021) (citation omitted).
However, in “an action to obtain damages, authorized costs and other similar relief under the Act
there must be shown a reasonable link between the discharge, the putative discharger, and the
contamination at the specifically damaged site.” Dimant, 51 A.3d at 833. (emphasis added).
In Marsh v. New Jersey Dep't of Env't Prot., the New Jersey Supreme Court analyzed the
phrase “in any way responsible” as to a purportedly “innocent landowner” who was unaware that
she had an underground tank that was emitting petroleum pollutants when she took title to the
property. 703 A.2d 927, 931 (N.J. 1997). The Supreme Court of New Jersey found the landowner
liable as “any way responsible” despite her purported innocence. In so finding, the Marsh Court
explained that the Legislature intended the Spill Act to be liberally construed to effect its purpose.
Id. at 147; see also In re Kimber Petroleum Corp., 539 A.2d 1181 (N.J. 1988) (stating that “[a]
party even remotely responsible for causing contamination will be deemed a responsible party
under the Act”).
Following a Spill Act amendment in 1991, the DEP adopted N.J. Admin. Code § 7:1E–1.6.
Marsh at 147. The DEP defined “person responsible for a discharge” as follows:
1. Any person whose act or omission results or has resulted in a
discharge;
2. Each owner or operator of any facility, vehicle or vessel from
which a discharge has occurred;
3. Any person who owns or controls any hazardous substance which
is discharged;
4. Any person who has directly or indirectly caused a discharge;
5. Any person who has allowed a discharge to occur; or

25

6. Any person who brokers, generates or transports the hazardous
substance discharged.
N.J. Admin. Code § 7:1E-1.6
i. Preemption
The Waterside Defendants first assert that CERCLA preempts Edgewater’s Spill Act
claims. The Court disagrees and finds persuasive the ruling in Caldwell Trucking PRP Grp. v.
Caldwell Trucking Co., in which the court found that CERCLA does not completely preempt the
Spill Act. 154 F. Supp. 2d 870, 876 (D.N.J. 2001) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 376,
(1986); Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125–27 (3d Cir. 1991)). The Waterside
Defendants rely on Allied Corp. v. Frola, which found that CERCLA’s Section 113(f)(2) preempts
the Spill Act within the context of an administrative consent order. No. CIV. A. 87-462, 1993 WL
388970, at *15 (D.N.J. Sept. 21, 1993). No such consent order exists here. However, while
CERCLA does not preempt state law claims, it does bar double recovery. As a result, the Spill
Act claims are not dismissed on preemption grounds, but Edgewater will be precluded from double
recovery.
ii. Fred Daibes
Edgewater argues that Fred Daibes is individually liable under the Spill Act as a person “in
any way responsible.” 10 Edgewater relies on Morris Plains Holding VF, LLC v. Milano French
Cleaners, Inc., No. A-0604-16T1, 2018 WL 1882956 (N.J. Super. Ct. App. Div. Apr. 20, 2018).
The defendant in that case, like Daibes, was the sole shareholder of an entity that discharged a
contaminant, and like Daibes, argued that there was a lack of evidence demonstrating he was “in

10

While Waterside addressed vicarious liability, Edgewater clarified that it is not arguing for
vicarious liability but rather that Daibes is individually liable. Pl. Reply at 13 n.10. The Court
therefore does not address Waterside’s vicarious liability arguments.

26

any way responsible.” Id. at *2. The Milano French court found that the shareholder was liable,
noting that the Spill Act broadly imposes liability, and that the legislative intent was to expand
liability without regard for “corporate veils and the like.” Id. at *2. At the same time, Daibes’
behavior must meet the requisite nexus under Dimant, which found that there must be a reasonable
link between the discharge, the putative discharger, and the contamination at the specifically
damaged site. Dimant, 51 A.3d 816, 834 (N.J. 2012). While Edgewater has cited to much evidence
showing Fred Daibes’ active role in the Waterside Entities, there exists a genuine dispute of
material fact as to his personal involvement and whether he approved the use of the Building 12
material at Veteran’s Field. See supra section III.A.ii. Liability. The Court will therefore not
grant summary judgment as to Fred Daibes’ liability.
iii. Waterside
Edgewater asserts that Waterside is liable as a direct discharger under the Spill Act. Pl.
Brf. at 18. Waterside argues that it is not liable because TERMS acted as a gatekeeper for the
project. Def. Brf. at 19-20. Waterside also asserts that Veterans Field was a highly contaminated
facility prior to Waterside’s involvement. Def. Brf. at 19. The Spill Act imposes strict liability on
dischargers, and Waterside has cited no authority which relieves it of liability. It is undisputed
that Waterside discharged RCA material containing PCBs from Building 12 material to Veterans
Field. BE SOMF ¶ 19. Waterside also does not dispute that the material was a hazardous material
under the Spill Act. That behavior is sufficient to meet the Dimant nexus requirement. Under the
strict liability imposed by the Spill Act, Waterside is liable as a discharger. Because there is no
genuine dispute of material fact, the Court grants summary judgment in favor of Edgewater against
Waterside under the Spill Act.

27

iv. 38 COAH
Additionally, 38 COAH owned the Alcoa Property in 2013 when Building 12 was
demolished and disposed of a Veterans Field. BE SOMF ¶¶ 68, 129-130. “Under the Spill Act, if
a party owns property at the time of a discharge, they are responsible for that discharge.” Litgo
New Jersey Inc. v. Comm’r New Jersey Dep’t of Env’t Prot., 725 F.3d 369, 392 (3d Cir. 2013)
(citing N.J. Dep’t of Envtl. Prot. V. Dimant, 51 A.3d 816, 829–30 (N.J. 2012); N.J. Admin. Code
§ 7:1E–1.6). Unlike CERCLA, the text of the Spill Act makes clear that it applies to an owner of
a facility from which a discharge has occurred. N.J. Admin. Code § 7:1E–1.6 (defining “person
responsible for a discharge” to include “[e]ach owner or operator of any facility, vehicle or vessel
from which a discharge has occurred”). 38 COAH owned the contaminated materials that were
discharged at Veterans Field. BE SOMF ¶ 129. However, Waterside’s brief does not address
Edgewater’s arguments as to 38 COAH’s liability. See Leisure Pass N. Am., LLC v. Leisure Pass
Grp., Ltd., No. 2:12-CV-03375 WJM, 2013 WL 4517841, at *4 (D.N.J. Aug. 26, 2013) (“Plaintiff
has waived its opposition to this argument by failing to respond to it.”); Arconic Inc. v. Novelis
Inc., No. CV 17-1434, 2019 WL 5802365, at *5 (W.D. Pa. Sept. 6, 2019) (“[A] party's failure to
dispute an argument in its opposition brief constitutes waiver of the right to relief.”). Because
there is no genuine dispute of material fact, the Court therefore grants summary judgment in favor
of Edgewater against 38 COAH under the Spill Act.
v. North River
Edgewater further argues that North River is liable as the prior owner of the Alcoa Property
who commenced remediation and disposal of the Building 12 hazardous materials. In support,
Edgewater relies on the following. North River obtained the Alcoa Property from AP in 1997. BE
SOMF ¶ 36. Through the PSA and MPA, North River agreed to demolish and remove the

28

buildings from the Alcoa Property. BE SOMF ¶ 43. North River also entered into the MOA with
the NJDEP to remediate the Alcoa Property in 1997. BE SOMF ¶ 44. North River entered into
an Environmental Indemnity Agreement with AP, indicating that if Building 12 were not
demolished, North River and RRIP would indemnify, defend, and hold AP harmless from damages
including remediation, disposal costs, and expenses related to PCBs. BE SOMF ¶¶ 52-55. North
River commenced remediation on-site and removed all former Alcoa Property buildings other than
Building 12. BE SOMF ¶¶ 58-61. Finally, North River had common ownership and control with
38 COAH and Waterside Construction via Fred Daibes. BE SOMF ¶¶ 39, 66, 86, 132.
Edgewater argues that North River’s actions in partially remediating the Alcoa Property,
including Building 12, but failing to complete the remediation or properly maintain the
contaminated materials that were ultimately discharged at Veterans Field satisfy the Spill Act’s
requirement for “some connection” to the contamination at issue. Pl. Brf. at 22.

Edgewater’s

argument centers on the idea that because North River began remediation, it was required under
the Spill Act to complete it. Edgewater cites no legal support other than one citation to Dimant’s
causal nexus. Pl. Brf. at 22. Edgewater has not carried its burden, and its motion as to North River
is denied.
vi. Daibes Brothers
Daibes Brothers was the environmental contractor responsible for the removal and disposal
of the hazardous substances at the Alcoa Property. BE SOMF ¶ 37. Edgewater asserts that Daibes
Brothers was responsible for the transportation and disposal of the materials contaminated with
PCBs in excess of 50 ppm from the Alcoa Property. Edgewater cites to the 2010 letter from the
NJDEP to Daibes Brothers stating that the response action outcome would not address
contamination within Building 12. BE SOMF ¶ 72.

29

Edgewater argues that Daibes Brothers remained responsible for the removal and disposal
of the contaminated materials ultimately discharged at Veterans Field, and that Daibes Brothers
and the other Daibes Entities had common ownership and control via Fred Daibes. Edgewater has
not cited to any case law other than a general citation to Dimant’s nexus requirement. Pl. Brf. at
25. Further, while the Waterside Entities opposed Edgewater’s arguments as to Daibes Brothers,
Edgewater did not address these arguments in its reply brief. Again, Edgewater has failed to carry
its burden, and its motion as to Daibes Brother is denied.
C. Consumer Fraud Act
Edgewater moves for summary judgment on Count XI, a Consumer Fraud Act claim
against Fred Daibes and Waterside (together, the “CFA Defendants”). 11 D.E. 347. The New
Jersey Consumer Fraud Act (“CFA”) “seeks to protect consumers who purchase goods or services
generally sold to the public at large.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 514 (3d Cir.
2006) (internal quotations and citation omitted).

To bring a CFA claim, a plaintiff must

demonstrate “(1) unlawful conduct; (2) ascertainable loss; and (3) a causal relationship between
the unlawful conduct and the ascertainable loss.” Int’l Union of Operating Eng’rs Local No. 68
Welfare Fund v. Merck & Co., Inc., 929 A.2d 1076, 1086 (N.J. 2007).
Unlawful conduct is defined as “any unconscionable commercial practice, deception,
fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression,
or omission of any material fact with intent that others rely upon such concealment, suppression

11

In this Section, Plaintiff’s Brief in Support (D.E. 347-1) will be referred to as “Pl. Brf.”;
Defendant’s Brief in Opposition (D.E. 375) will be referred to as “Def. Brf.”; and Plaintiff’s Brief
in Reply (D.E. 393) will be referred to as “Pl. Reply.”

30

or omission.” N.J.S.A. § 56:8-2. The Supreme Court of New Jersey has said the following
concerning an unlawful practice under the CFA:
To violate the Act, a person must commit an “unlawful practice” as
defined in the legislation. Unlawful practices fall into three general
categories: affirmative acts, knowing omissions, and regulation
violations. The first two are found in the language of N.J.S.A. 56:82, and the third is based on regulations enacted under N.J.S.A. 56:84. A practice can be unlawful even if no person was in fact misled
or deceived thereby. The capacity to mislead is the prime ingredient
of all types of consumer fraud.
When the alleged consumer-fraud violation consists of an
affirmative act, intent is not an essential element and the plaintiff
need not prove that the defendant intended to commit an unlawful
act. However, when the alleged consumer fraud consists of an
omission, the plaintiff must show that the defendant acted with
knowledge, and intent is an essential element of the fraud.
...
The third category of unlawful acts consists of violations of specific
regulations promulgated under the Act. In those instances, intent is
not an element of the unlawful practice, and the regulations impose
strict liability for such violations. The parties subject to the
regulations are assumed to be familiar with them, so that any
violation of the regulations, regardless of intent or moral culpability,
constitutes a violation of the Act.
Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994) (internal citations omitted).
“Unconscionable commercial practice,” in turn, refers to a standard of conduct that implies a lack
of fair dealing, good faith, and honesty. Id. (citation omitted).
Defendants argue that the CFA does not apply because Edgewater is sophisticated and the
dispute is contractual in nature. D.E. 375 at 11. “The entire thrust of the [CFA] is ‘pointed to
products and services sold to consumers in the popular sense.’” BOC Grp., Inc. v. Lummus Crest,
Inc., 597 A.2d 1109, 1112 (N.J. Sup. Ct. Law. Div. 1990) (quoting Neveroski v. Blair, 358 A.2d
473 (N.J. Sup. Ct. App. Div. 1976)). “A ‘consumer’ is generally defined as ‘one who uses

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(economic) goods, and so diminishes or destroys their utilities.’” Stockroom, Inc. v. Dydacomp
Dev. Corp., 941 F. Supp. 2d 537, 544 (D.N.J. 2013) (quoting Hundred East Credit Corp. v. Eric
Shuster Corp., 515 A.2d 246 (N.J. Sup. Ct. App. Div. 1986)). New Jersey courts have repeatedly
emphasized that “the CFA seeks to protect consumers who purchase ‘goods or services generally
sold to the public at large.’” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 514 (3d Cir. 2006)
(quoting Marascio v. Campanella, 298 N.J. Super. 491, 499 (1997)). As such, the Third Circuit
has stated that “the CFA is not intended to cover every transaction that occurs in the marketplace,
but, rather, its applicability is limited to consumer transactions which are defined both by the status
of the parties and the nature of the transaction itself.” Id. (internal quotations and alterations
omitted) (quoting Arc Networks, Inc. v. Gold Phone Card Co., 333 N.J.Super. 587, 590 (Law Div.
2000)).
Nevertheless, “[t]he language of the CFA evinces a clear legislative intent that its
provisions be applied broadly in order to accomplish its remedial purpose, namely, to root out
consumer fraud.” Lemelledo v. Beneficial Mgmt. Corp. of Am., 696 A.2d 546, 551 (N.J. 1997);
see also Real v. Radir Wheels, Inc., 969 A.2d 1069, 1075 (N.J. 2009) (“The CFA is recognized to
be remedial legislation which should be construed liberally.”) (internal quotation marks omitted).
“To fall within the scope of the NJCFA, goods and services need not be only those that are
purchased by ‘average consumers’; the statute may also cover merchandise that is ‘expensive,
uncommon, or only suited to the needs of a limited clientele.’” CDK Glob., LLC v. Tulley Auto.
Grp., Inc., No. 15-3103 (KM) (JBC), 2016 WL 1718100, at *6 (D.N.J. Apr. 29, 2016) quoting
Prescription Counter v. AmeriSource Bergen Corp., 2007 WL 3511301, at *14 (D.N.J. Nov. 14,
2007). As a result, courts in New Jersey “have squarely held that the NJCFA applies to the sale
of merchandise for use in business operations.” Stockroom, Inc., 941 F. Supp. 2d at 543-44

32

(finding the plaintiff business to be a “consumer” under the CFA in connection with the plaintiff’s
purchase of order-processing software from defendant business); see also Coastal Grp., Inc. v.
Dryvit Sys., Inc., 643 A.2d 649, 653 (N.J. Sup. Ct. App. Div. 1994) (reversing trial court’s finding
that the plaintiff, a condominium project owner and developer, was not a consumer within the
meaning of the CFA in connection with the plaintiff’s purchase of prefabricated wall paneling
from the defendant panel manufacturer).
As a result, it is not always clear when a given transaction should be covered by the CFA:
[Some] courts have also dismissed NJCFA claims relying on
services or goods that are only offered to a select group of
individuals. See, e.g., Centrum Fin. Servs., Inc. v. Chi. Title Ins.
Co., Civ. No. 09–3300, 2010 WL 936201, at *4 (D.N.J. Mar. 12,
2010) (rejecting NJCFA claim for title insurance); Khan v.
Conventus Inter–Ins. Exchange, 440 N.J.Super. 372, 376–77, 113
A.3d 803 (Law Div.2013) (rejecting NJCFA claim for medical
malpractice insurance because physicians only represent 0.27% of
the general population in New Jersey).
On the other side of the issue, at least one judge in this district has
determined that the NJCFA can encompass claims for merchandise
that is “expensive, uncommon, or only suited to the needs of a
limited clientele.” See, e.g., Prescription Counter v.
AmerisourceBergen Corp., Civ. No. 04–5802, 2007 WL 3511301,
at *14 (D.N.J. Nov. 14, 2007). Similarly, the judge in CDK Global,
LLC v. Tulley Automotive Group, Inc., Civ. No. 15–3103, 2016 WL
1718100, at *6–7 (D.N.J. Apr. 29, 2016) found that the NJCFA
would apply to the lease of computer equipment when it was used
during the regular course of business and alleged to be marketed to
thousands of businesses.
City of Atl. City v. Zemurray St. Cap., LLC, 192 F. Supp. 3d 563, 568 (D.N.J. 2016).
Edgewater cites to All the Way Towing regarding business-to-business transactions that fall
within the scope of the CFA. All the Way Towing, LLC v. Bucks Cty. Int'l, Inc., 200 A.3d 398, 408
(N.J. 2019). While it is not clear that Edgewater is a “business,” the court’s test is instructive, and
considers the following:

33

(1) the complexity of the transaction, taking into account any
negotiation, bidding, or request for proposals process; (2) the
identity and sophistication of the parties, which includes whether the
parties received legal or expert assistance in the development or
execution of the transaction; (3) the nature of the relationship
between the parties and whether there was any relevant underlying
understanding or prior transactions between the parties; and . . . ; (4)
the public availability of the subject merchandise.
Id.
According to Edgewater’s statement of facts, Edgewater issued a bid notice in 2012 for the
Veterans Field Improvement Project. BE ¶ SOMF 82. As part of the process, certain documents—
instructions to bidders, general conditions, technical specifications, and a contract form—were
incorporated in the executed contract. BE ¶ SOMF 82. The scope of the work in the bid notice
consisted of the remediation of Veterans Field, the installation of baseball fields and a soccer field,
along with the associated drainage and grading, and the installation of a playground and parking
lots. BE ¶ SOMF 83. The project was then awarded to Waterside. BE ¶ SOMF 85. The cost of
importing fill alone was over $800,000. BE ¶ SOMF 88. The total contract amount was listed as
$7,069,075.88. Corriston Cert., Ex. NNN. At the time it issued the bid notice, Edgewater had
already retained TERMS in conjunction with the proposed improvements at Veterans Field. BE
SOMF ¶¶ 76, 80.
Given the foregoing facts, Edgewater has not sufficiently demonstrated that the CFA
applies. The transaction was complex and subject to a bidding process. Edgewater also relied on
expert assistance – both before, during, and after the contract. See Princeton Healthcare Sys. v.
Netsmart New York, Inc., 29 A.3d 361, 365 (App. Div. 2011) (finding the CFA inapplicable to a
transaction which entailed requests for proposals and a lengthy process of evaluation and detailed
negotiations); see also Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494, 509
(D.N.J. 1999) (noting that transactions of goods not available to the general public that were

34

covered by the CFA tended to involve standardized goods and did not require individualized
bargaining while those transactions that were not covered usually involved specific agreements
and individualized negotiations). The Court will therefore deny summary judgment on Count XI. 12
D. Breach of Contract and Negligence
Edgewater moves for summary judgment on its breach of contract and negligence claims. 13
D.E. 348.
1. Breach of Contract
To prevail on a breach of contract claim under New Jersey law, a plaintiff must demonstrate
(1) the existence of a valid contract; (2) breach of the contract; (3) damages as a result of the
breach; and (4) that the complaining party performed its own duties under the contract. Pollack v.
Quick Quality Rests., Inc., 172 A.3d 568, 576 (N.J. Super. App. Div. 2017) (citing Globe Motor
Co. v. Igdalev, 139 A.3d 57, 64 (N.J. 2016)).
Waterside does not dispute any of these elements but instead argues that Edgewater waived
its right to assert breach of contract and that it is estopped from doing so. Def. Brf. at 12. As to
the estoppel argument, there are genuine issues of material fact regarding TERMS’ approval (as
an agent of Edgewater) and Edgewater’s knowledge. “Equitable estoppel is invoked in the
interests of justice, morality and common fairness.” China Falcon Flying Ltd. v. Dassault Falcon
Jet Corp., 329 F. Supp. 3d 56, 72 (D.N.J. 2018) (citing Newark Cab Ass'n v. City of Newark, 235

12

Having denied summary judgment on this ground, the Court does not reach Waterside’s
arguments as to whether a municipality can be considered a “person” and whether Edgewater
experienced an ascertainable loss.
13

In this section, Edgewater’s brief in support of its motion (D.E. 348-1) will be referred to as “Pl.
Brf.,” Defendants’ brief in opposition (D.E. 378) will be referred to as “Def. Brf.,” and
Edgewater’s brief in reply (D.E. 394) will be referred to as “Reply Brf.”

35

F. Supp. 3d 638, 648 (D.N.J. 2017). “To establish equitable estoppel, plaintiffs must show that
defendant engaged in conduct, either intentionally or under circumstances that induced reliance,
and that plaintiffs acted or changed their position to their detriment.” Id. Waterside argues that it
relied on TERMS as the gatekeeper of the project, that TERMS was an agent of Edgewater, and
that Waterside believed that it had TERMS’ approval. Def. Brf. at 15. Waterside continues that
it relied on Edgewater’s behavior as signaling that the acts now alleged to constitute breach of
contract were done with Edgewater’s consent. Waterside has presented disputes of fact at least as
to (1) TERMS approval of the use of the Building 12 material and (2) Edgewater’s knowledge of
such approval. W SOMF ¶¶ 80, 82, 83, 84. Given these genuine disputes of material fact as to
estoppel, Edgewater’s motion is denied in this regard.
Under New Jersey law, waiver is defined as “an intentional relinquishment of a known
right.” Sleep Tight Diagnostic Ctr., LLC v. Aetna Inc., 399 F. Supp. 3d 241, 253–54 (D.N.J. 2019),
reconsideration denied, No. CV 18-3556 (FLW), 2020 WL 967819 (D.N.J. Feb. 27, 2020) (citing
Knorr v. Smeal, 836 A.2d 794, 798 (N.J. 2003)). “The intent to waive need not be stated expressly,
provided the circumstances clearly show that the party knew of the right and then abandoned it.”
Id. Such words or acts however, must be “voluntary, clear and decisive,” such that they imply “an
election to forego some advantage which the waiving party might have insisted on.” Id. (quoting
Deerhurst Estates v. Meadow Homes, Inc., 165 A.2d 543 (App. Div. 1960), certif. denied, 167
A.2d 55 (N.J. 1961)). Waterside asserts that because TERMS was in charge of all testing and
approval of fill, Edgewater waived its right to claim breach of contract as to fill that was used
pursuant to the guidance and direction of TERMS. Def. Brf. at 13. Waterside explains that
Edgewater, via TERMS, was aware that material being utilized at Veterans Field was not tested.
W SOMF P 80, 82, 83, 84, 86. Having decided that summary judgment is not appropriate given

36

the genuine disputes of material fact inherent in Waterside’s estoppel argument, the Court need
not reach Waterside’s waiver argument. The Court notes however that this argument appears to
involve many of the same factual issues, including (1) TERMS approval of the Building 12
material and (2) Edgewater’s knowledge of such approval. These are not issues amendable to
resolution on summary judgment.
Because there are genuine disputes of material fact as to Waterside’s estoppel and waiver
arguments, summary judgment on Edgewater’s breach of contract claim is denied.
2. Negligence
Edgewater moves for summary judgment on its negligence claim against Fred Daibes and
38 COAH. “To prevail on a claim of negligence a plaintiff must establish four elements: (1) that
the defendant owed a duty of care; (2) that the defendant breached that duty; (3) actual and
proximate causation; and (4) damages.” Fernandes v. DAR Dev. Corp., 119 A.3d 878, 885-86
(N.J. 2015) (citing Townsend v. Pierre, 110 A.3d 52, 61 (N.J. 2015)).
Defendants first argue that the economic loss doctrine bars the negligence claims asserted
against them. Def. Brf. at 16-17. “The economic loss doctrine prohibits plaintiffs from recovering
in tort economic losses to which their entitlement only flows from contract.” Chen v. HD
Dimension Corp., No. 10-863, 2010 WL 4721514, at *8 (D.N.J. Nov. 15, 2010). Thus, “whether
a tort claim can be asserted alongside a breach of contract claim depends on whether the tortious
conduct is extrinsic to the contract between the parties.” Id. Additionally, in the absence of
“personal injury or consequential property damage arising from a traumatic event,” a plaintiff's
negligence claim fails under the economic loss doctrine. Saltiel v. GSI Consultants, Inc.,788 A.2d
268, 280 (N.J. 2002).

37

Waterside argues that Edgewater’s negligence claim is nothing more than a claim that
Waterside negligently performed the contract, which Edgewater extends to Fred Daibes as a
corporate officer and the other Waterside Entities via vicarious liability. Def. Brf. at 17. The
Court disagrees. 38 COAH and Fred Daibes are not parties to the contract, and Edgewater has not
asserted breach of contract claims against them. Pl. Brf. at 14. Therefore, Edgewater’s claims
against 38 COAH and Fred Daibes do not flow from contract. See Ford Motor Co. v. Edgewood
Properties, Inc., No. Civ. 06-1278-ES, 2012 WL 4172133, at *23 (D.N.J. Aug. 31, 2012) (holding
the economic loss doctrine inapplicable where plaintiff’s breach of contract and negligence claims
were asserted against different parties); see also Capitalplus Equity, LLC v. Prismatic Dev. Corp.,
No. 07–321, 2008 WL 2783339, at *6 (D.N.J. July 16, 2008) (“Plaintiff's fraud, negligent
misrepresentation, promissory estoppel and equitable estoppel claims are not barred by the
economic loss doctrine because they do not arise out of the same facts underlying the breach of
contract claims.”). It would be contrary to reason to allow 38 COAH and Fred Daibes to escape
liability based on the economic loss doctrine because a contract exists when they are not parties to
the contract and therefore cannot be sued for breach of contract; the economic loss doctrine
prevents recovery under tort when contract recovery is more appropriate, but the doctrine’s
application here would mean that that neither claim applies.
Further, Edgewater has shown that a duty as to potential contamination can exist outside
of a contractual obligation. Preferred Real Est. Invs., Inc. v. Edgewood Properties, Inc., No. Civ.
06-4266-AET, 2007 WL 81881, at *3 (D.N.J. Jan. 9, 2007) (holding that defendants owed a duty
to plaintiffs as foreseeable victims and breached that duty when they gave another party PCBcontaminated concrete without informing them of the contamination). Finally, Edgewater has
demonstrated that contamination of property is not “purely economic” because it also results in

38

actual property damage. See Ford Motor, 2012 WL 4172133, at *23 (finding support for
allegations of physical harm via evidence of alleged environmental contamination resulting from
the use of contaminated concrete as backfill); see also Green Hills (USA), L.L.C. v. Aaron Streit,
Inc., 361 F. Supp. 2d 81, 90 (E.D.N.Y. 2005) (ruling that the economic loss doctrine did not apply
to injury from environmental contamination, which arose from a duty separate from the contractual
duty). The economic loss doctrine therefore does not bar Edgewater’s negligence claims asserted
against 38 COAH and Fred Daibes.
However, genuine questions of material fact regarding the parties’ knowledge of
contamination preclude a grant of summary judgment on the issue. As discussed above, 38 COAH
and Daibes’ knowledge of contamination of the interior walls is a genuine dispute of material fact.
As a result, summary judgment as to Edgewater’s negligence claim is denied.
IV.

CONCLUSION
For the foregoing reasons, Edgewater’s motion (DE 347) for summary judgment is

DENIED; Edgewater’s motion (DE 348) for summary judgment is DENIED; Edgewater’s motion
(DE 350) for summary judgment is GRANTED in part and DENIED in part; and Edgewater’s
motion (DE 353) for summary judgment is GRANTED in part and DENIED in part. Edgewater’s
motion (DE 350) for summary judgment on its Spill Act claim is GRANTED as to Waterside and
38 COAH but is otherwise DENIED. Edgewater’s motion (DE 353) for summary judgment on its
CERCLA claim is GRANTED as to Waterside’s liability as an operator and transporter but is
otherwise DENIED. An appropriate Order accompanies this Opinion.
Dated: June 30, 2021

__________________________
____
__ __
__________________________
hn
hn Michael
U. .D J.
John Michael Vazquez, U.S.D.J.
U.S.D.J.

39