BOROUGH OF EDGEWATER v. WATERSIDE CONSTRUCTION, LLC et al

Filing 415

OPINION. Signed by Judge John Michael Vazquez on 7/19/2021. (bt, )

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Not for Publication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.,

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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: a motion (D.E. 344) for summary judgment
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”) against
Plaintiff Borough of Edgewater (“Edgewater”) 1; two motions (D.E. 349, 352) for summary
judgment filed by Edgewater against Arconic; and a motion (D.E. 402) filed by Arconic to strike
the affidavit of Thomas Bambrick.
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. 344 is
GRANTED in part and DENIED in part, while Edgewater’s motions for summary judgment at
D.E. 349 and D.E. 352 are DENIED. Arconic’s motion to strike at D.E. 402 is DENIED as moot.2

1

Arconic’s brief (D.E. 344-1) in support of its motion (D.E. 344) for summary judgment will be
referred to as “Def. Brf.”; Edgewater’s brief (D.E. 376) in opposition to that motion will be referred
to as “Pl. Brf.”; and Arconic’s brief (D.E. 398) in reply will be referred to as “Def. Reply.”
2

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

2

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I.

BACKGROUND
This matter stems from allegations that certain Defendants, unrelated to the instant

motions, 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 Arconic.
A. Facts 4
Alcoa, now known as Arconic, 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
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

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.
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.
4

Edgewater’s statement of material facts (D.E. 319-1) will be referred to as “BE SOMF”;
Arconic’s own statement of material facts (D.E. 318) will be referred to as “A SOMF”; Arconic’s
response to Edgewater’s statement of material facts (D.E. 330) will be referred to as “A Response”;
Edgewater’s counterstatement of facts (D.E. 323-2) will be referred to as “BE Reply SOMF;” and
Arconic’s response to Edgewater’s counterstatement of facts (D.E. 360) will be referred to as “A
Reply SOMF.”

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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 a related Multi-Party
Property Acquisition Agreement (“MPAA”), 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 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 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 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 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

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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.
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.
B. Procedural History
Edgewater first filed suit on August 12, 2014. D.E. 1. 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 pleading 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;

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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:

CFA against Waterside and Fred Daibes;

Count XI:

Breach of contract against TERMS; and

Count XII:

Negligence against TERMS.

Multiple parties have filed multiple motions for summary judgment. This Opinion address
only the motions for summary judgment between Edgewater and Arconic as well as the related
motion to strike. (D.E. 344, 349, 352, 402).
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
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

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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.
III.

ANALYSIS
A. Unjust Enrichment
Arconic moves for summary judgment on Edgewater’s unjust enrichment claim, arguing

that Edgewater had an independent duty to remediate Veterans Field. Def. Brf. at 35. “To prove
a claim for unjust enrichment, a party must demonstrate that the opposing party received a benefit
and that retention of that benefit without payment would be unjust.” Thieme v. Aucoin-Thieme,

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151 A.3d 545, 557 (N.J. 2016) (internal quotation and citation omitted). The “quasi-contact
doctrine also requires that the plaintiff show that it expected remuneration from the defendant at
the time it performed or conferred a benefit on defendant and that the failure of remuneration
enriched defendant beyond its contractual rights.” Stewart v. Beam Glob. Spirits & Wine, Inc.,
877 F. Supp. 2d 192, 288 (D.N.J. 2012) (internal quotation and citation omitted).
In SC Holdings, Inc. v. A.A.A. Realty Co., an owner of a contaminated site brought
CERCLA, Spill Act, and unjust enrichment claims against a potentially responsible party. 935 F.
Supp. 1354 (D.N.J. 1996). The court found that because the plaintiff was the owner of the
contaminated site, it was under a legal duty pursuant to both CERCLA and the Spill Act to
remediate the site. Id. at 1372. The SC Holdings court therefore dismissed the owner’s unjust
enrichment claim. Id. In that case, the plaintiff was suing to recover the cleanup costs the
defendant had allegedly avoided. Similarly, in Smith Land & Improvement Corp. v. Rapid–
American Corp., the defendant was alleged to be a party “liable to clean up” the land but was
spared from clean-up costs because the plaintiff was chosen by the EPA to do conduct the cleanup.
26 Env't Rep. Cas. (BNA) 2023, 1987 WL 56461 (M.D. Pa. 1987), vacated on other grounds,
Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.1988), cert. denied, 488
U.S. 1029, 109 S. Ct. 837, 102 L. Ed. 2d 969 (1989). The Smith Land court ruled that the plaintiff
was not enriched because it was “equally responsible to clean up its land.” Id.
Edgewater responds that the relevant benefit conferred is not the remediation of Veterans
Field but the illegal disposal of hazardous materials through which Arconic avoided paying for
proper disposal. Edgewater cites to an opinion from this Court: AMA Realty LLC v. 9440 Fairview
Ave. LLC, No. CV 13-457, 2017 WL 6728641, at *1 (D.N.J. Dec. 28, 2017). In that case, the
plaintiff alleged that by improperly dumping hazardous material on the plaintiff’s property, the

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defendants were unjustly enriched. The court held that that allegation “may give rise to unjust
enrichment.” Id. at *9.
Arconic argues that a benefit of avoiding of the cost of proper disposal would only be
cognizable if Edgewater did not have an independent legal duty to properly dispose of the
hazardous materials at Veterans Field. Def. Reply. at 11. However, that duty only arose because
the Building 12 materials were first deposited at Veterans Field. In other words, Edgewater had
no duty to properly dispose of the Building 12 materials until they were dumped at Veterans Field.
The Court is not convinced that– as a matter of law—the subsequent duty to remediate negates the
potential enrichment gained by Arconic by avoiding the cost to properly dispose of Building 12.
While there may be other reasons that Edgewater cannot recover for unjust enrichment, 5 Arconic
has not raised any other argument. Arconic’s motion for summary judgment on Count VIII is
therefore denied.
B. Strict Liability
Arconic next moves for summary judgment on Edgewater’s strict liability claim. Def. Brf.
at 32. “To prevail on a claim for strict liability, two elements must be demonstrated: (1) that the
defendant's disposal of waste constituted an ‘abnormally dangerous activity,’ and (2) that such
activity has harmed the plaintiff.” Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 263 F. Supp. 2d
796, 850 (D.N.J. 2003), aff'd, 399 F.3d 248 (3d Cir. 2005) (citing T & E Indus. v. Safety Light
Corp., 587 A.2d 1249 (N.J. 1991); New Jersey Turnpike Auth. v. PPG Indus., Inc., et al., 16 F.
Supp. 2d 460, 479 (D.N.J. 1998); Dep’t of Env’l Prot. v. Ventron, 468 A.2d 150 (N.J. 1983)). As

5

For example, Arconic does not point to the factual differences between this matter and AMA
Realty. In that case, the parties had an underlying contractual relationship and the plaintiff had
accused the defendant of actually dumping the hazardous material. AMA Realty, 2017 WL
6728641, at *9.

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to the first element, “whether an activity is abnormally dangerous is to be determined on a caseby-case basis, taking all relevant circumstances into consideration.” Rowe v. E.I. Dupont De
Nemours & Co., 262 F.R.D. 451, 466 (D.N.J. 2009) (quoting Ventron, 468 A.2d 150).
Specifically, a court should consider the following factors:
(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried
on; and
(f) extent to which its value to the community is outweighed by its
dangerous attributes.
Id. Arconic does not dispute that generating PCB-contaminated concrete would constitute an
abnormally dangerous activity. Instead, Arconic argues that that activity did not proximately cause
the contamination at Veterans Field because the actions of Waterside and related parties’ behavior
cut the chain of causation.
“Even in a strict-liability action, a plaintiff must prove causation.” Ciapinski v. Crown
Equip. Corp., No. A-4505-07T2, 2010 N.J. Super. Unpub. LEXIS 146, at *48 (N.J. Super. Ct.
App. Div. Jan. 21, 2010) (citing Cruz-Mendez v. ISU/Ins. Servs. Of S.F., 722 A.2d 515, 524 (N.J.
1999)); see also Yun v. Ford Motor Co., 647 A.2d 841, 845 (App. Div. 1994), rev’d, 669 A.2d
1378 (N.J. 1996) (stating that proximate cause “is an essential element of an action based in either
strict liability or negligence.”). Proximate cause is “any cause which in the natural and continuous
sequence, unbroken by an efficient intervening cause, produces the result complained of and
without which the result would not have occurred.” Townsend v. Pierre, 110 A.3d 52, 61 (N.J.
2015) (quoting Conklin v. Hannoch Weisman, 678 A.2d 1060, 1071 (N.J. 1996)) (citations
omitted). “Foreseeability is a constituent part of proximate cause.” Komlodi v. Picciano, 89 A.3d

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1234, 1251 (N.J. 2014). “An act is foreseeable when a reasonably prudent, similarly situated
person would anticipate a risk that her conduct would cause injury or harm to another person.” Id.
at 1251 (citation omitted). However, “if an injury or harm was so remote that it could not have
been reasonably anticipated, the injury or harm is not foreseeable.” Id. (citation omitted).
Under New Jersey law, “the doctrine of superseding cause focuses on whether events or
conduct that intervene subsequent to the defendant’s negligence are sufficiently unrelated to or
unanticipated by that negligence to warrant termination of the defendant’s responsibility.” Lynch
v. Scheininger, 744 A.2d 113, 125 (N.J. 2000).

The Lynch court found that the Second

Restatement’s definition of a superseding event is “simple and straightforward”:
A superseding cause relieves the actor from liability, irrespective of
whether his antecedent negligence was or was not a substantial
factor in bringing about the harm. Therefore, if in looking back from
the harm and tracing the sequence of events by which it was
produced, it is found that a superseding cause has operated, there is
no need of determining whether the actor’s antecedent conduct was
or was not a substantial factor in bringing about the harm.
Id. at 122-123 (quoting Restatement (Second) of Torts § 440 comment b (Am. Law Inst. 1965)).
Thus, “[p]roximate cause has been described as a standard for limiting liability for the
consequences of an act based upon mixed considerations of logic, common sense, justice, policy
and precedent.” Fluehr v. City of Cape May, 732 A.2d 1035, 1041 (N.J. 1999) (internal quotations
omitted).
Generally, “[p]roximate cause is a factual issue, to be resolved by the jury after appropriate
instruction by the trial court.” Scafidi v. Seiler, 574 A.2d 398, 402 (N.J. 1990). Edgewater argues
that Arconic knew that the building materials were intended to be reused at properties owned by
third parties and it was therefore foreseeable that the Waterside Entities would harm such a third
party by disposal of the contamination. Pl. Brf. at 38. Whether the Waterside and the related

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entities’ subsequent actions broke the chain of causation is a question for the jury. Arconic’s
motion for summary judgment on Count IX is therefore denied.
C. Negligence
Arconic further moves for summary judgment on Edgewater’s negligence claim, arguing
that Alcoa owed no duty to Edgewater. “The fundamental elements of a negligence claim are a
duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury
to the plaintiff proximately caused by the breach, and damages.” Shields v. Ramslee Motors, 223
A.3d 172, 176 (N.J. 2020) (quoting Robinson v. Vivirito, 86 A.3d 119, 124 (N.J. 2014)). “Whether
a duty of care exists is a question of law that must be decided by the court.” Jerkins ex rel. Jerkins
v. Anderson, 922 A.2d 1279, 1284 (N.J. 2007) (citation omitted). “In making that determination,
the court must first consider the foreseeability of harm to a potential plaintiff . . . and then analyze
whether accepted fairness and policy considerations support the imposition of a duty[.]” Id.
(citations omitted).
Foreseeability is relevant to both duty and proximate cause. 6 See In re Asbestos Prods.
Liab. Litig., 873 F.3d 232, 236 (3d Cir. 2017) (noting that foreseeability “is a concept embedded”
in both duty and proximate cause). At the same time, there are differences between the two:
“. . . the risk reasonably to be perceived defines the duty to be
obeyed; it is the risk reasonably within the range of apprehension,
of injury to another person, that is taken into account in determining
the existence of the duty to exercise care.” [Hill v. Yaskin, 380 A.2d
1107 (N.J. 1977)] (citation omitted). “The broad test of negligence
is what a reasonably prudent person would foresee and would do in
the light of this foresight under the circumstances.” Ibid.
Foreseeability as it relates to proximate cause, “on the other hand,
relates to ‘the question of whether the specific act or omission of the
6

Arconic does not argue that it is entitled to summary judgment based on proximate cause. Def.
Brf. at 36-39.

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defendant was such that the ultimate injury to the plaintiff’
reasonably flowed from defendant's breach of duty.” [Clohesy v.
Food Circus Supermarkets, Inc., 694 A.2d 1017, 1021 (N.J. 1997)]
(quoting Hill, 75 N.J. at 143, 380 A.2d 1107). In other words,
“[f]oreseeability in the proximate cause context relates to
remoteness rather than the existence of a duty.” Ibid.
S.H. v. K & H Transp., Inc., 242 A.3d 278, 286-87 (N.J. Super. Ct. App. Div. 2020).
Edgewater argues that Arconic “owed a duty of care to Edgewater to 1) ensure compliance
with applicable regulations relating to the transfer and reuse of PCB-contaminated concrete outside
of the Alcoa Property, and 2) to ensure that the handling and disposal of such materials was
conducted in a safe and reasonable manner.” Pl. Brf. at 40. Edgewater relies primarily on
Preferred Real Est. Invs., Inc. v. Edgewood Properties, Inc., No. CIV. 06-4266 (AET), 2007 WL
81881 (D.N.J. Jan. 9, 2007). In that case, the defendants supplied another entity, Edgewood, with
contaminated concrete, which was then used to contaminate the plaintiff’s property. At the motion
to dismiss stage, the Court held that the plaintiffs were foreseeable victims because it was
reasonably foreseeable that the concrete could be used to contaminate other property, “such as a
co-owner or those contracting with Edgewood.” Id. at *3. The court reasoned that the defendants
provided Edgewood with crushed concrete for fill from an already demolished building, knowing
it was contaminated, and without informing the developer of the contamination.
In this case, it is alleged that Arconic knew of undisclosed contamination at the time it sold
the Alcoa Property—specifically that there were two underground storage tanks (USTs) beneath
Building 12 which Arconic did not disclose. BE SOMF ¶¶ 32, 33, 35. Arconic claims that it was
unaware of the existence of the two USTs when it made representations about the number of USTs
on the Alcoa Property. A Response ¶ 30. At the same time, Arconic states that it “is aware of no
facts indicating that it was not in possession of the drawings showing the potential existence of
two USTs under Building 12 in 1993.” A Response ¶ 32. Before the Court can determine whether

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Arconic owed a duty to Edgewater, a factual issue must be resolved—specifically, whether
Arconic knew (or should have known) of the two USTs when it made the relevant representations.
That issue presents a genuine dispute of a material fact. If it is true that Arconic knew or should
have known of the two USTs, then this matter is more analogous to Preferred Real Estate. 7 A
legal determination of duty is not appropriate until the factual questions surrounding Arconic’s
knowledge of contamination are made. Arconic’s motion for summary judgment on Count VII is
therefore denied.
D. CERCLA
Both parties move for summary judgment on Edgewater’s CERCLA claim. 8 Edgewater
has asserted that Alcoa is liable as an “arranger.” Pl. CERCLA Brf. CERCLA imposes arranger
liability as follows:
[A]ny 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 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[.]
42 U.S.C. § 9607(a)(3). “[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 N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 611 (2009).

7

To be clear, the Court is not definitively deciding the duty issue at this time because even if
Arconic knew of the two USTs, there are still seemingly important factual differences with
Preferred Real Estate.
8

In this section, Edgewater’s brief in support of its motion (D.E. 352) for summary judgment will
be referred to as “Pl. CERCLA Brf.”; Arconic’s brief in opposition (D.E. 373) will be referred to
as “Def. CERCLA Brf.”; and Edgewater’s brief in reply (D.E. 400) will be referred to as “Pl.
CERCLA Reply.”

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“[K]nowledge alone is insufficient.” Burlington, 556 U.S. at 612. The most important factors in
determining arranger liability are (1) ownership or possession; and (2) knowledge; or (3) control.
Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 677 (3d Cir. 2003). Further, an arranger
must have taken “intentional steps to dispose of [the] hazardous substance.” Burlington, 556 U.S.
at 611 (citation omitted). The Third Circuit has provided the following guidance on arranger
liability:
Ownership or possession of the hazardous substance must be
demonstrated, but this factor alone will not suffice to establish
liability. A plaintiff must also demonstrate either control over the
process that results in a release of hazardous waste or knowledge
that such a release will occur during the process. We note, too, that
in conducting this analysis a court should not lose sight of the
ultimate purpose of Section 113, which is to determine whether a
defendant was sufficiently responsible for hazardous-waste
contamination so that it can fairly be forced to contribute to the costs
of cleanup.
Morton, 343 F.3d at 677–78.
Edgewater argues that Arconic—then Alcoa—is an arranger by virtue of the 1997 sale of
the Alcoa Property. Pl. Brf. at 17-20. The disposal at Veterans Field is alleged to have occurred
in 2013— approximately 15 years after the point at which Edgewater alleges Arconic became an
“arranger.” BE SOMF ¶¶ 96, 99. Edgewater does not allege that Arconic was involved with the
specific decision to demolish Building 12 and deposit the materials at Veterans Field or that
Arconic was even aware of that decision. At the time Arconic sold the Alcoa Property, Building
12 was still standing and 15 years later, “unbeknownst to” Arconic, Waterside disposed of the
contaminated Building 12 materials at Veterans Field. Edgewater has not pointed to any authority
which has extended CERCLA arranger liability this far.
Arconic did not have the requisite ownership, possession, knowledge, or control over the
arrangement which led to the disposal at Veterans Field. Arconic did not have ownership or

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possession of Building 12 when its materials were disposed of at Veterans Field. Def. Reply at
15. Edgewater cites two cases for the proposition that an arranger is required only to have
“ownership of the product at the time a sale is entered into,” as opposed to at the time of disposal.
Pl. Brf. (D.E. 352) at 15 (citing W.R. Grace & Co. -Conn. v. Zotos Int'l, Inc., 2013 U.S. Dist.
LEXIS 141028, *82 (W.D.N.Y. Sep. 26, 2013); Catellus Devel. Corp. v. United States, 34 F.3d
748 (9th Cir. 1994)). Accepting this argument as true, Arconic’s sale of the Alcoa Property in
1997 was not the arrangement that resulted in the 2013 disposal for which Edgewater incurred
cleanup costs. 9
It is true that an arranger need not maintain control of the hazardous substances until
discharge—such a rule would not capture circumstances in which an arranger cedes control in
order for the disposal to take place. But here, Alcoa did not have ownership or control of Building
12 for 15 years before the discharge. C.f. Agere Sys. v. Advanced Envtl. Tech. Corp., 2006 WL
3366167 (E.D. Pa. Nov. 20, 2006) (imposing liability where a contractor in charge of disposing of
waste contracted with another entity to dispose of the material and where knowledge of a release
was inherent to the disposal). Edgewater cites to Agere, which stated “[t]he mere fact that the
individual is able to transfer the item to a third party establishes that the individual has exercised
control.” Agere Sys. v. Advanced Envtl. Tech. Corp., No. 02-3830, 2006 U.S. Dist. LEXIS 84114,
at *19 (E.D. Pa. Nov. 17, 2006). But the case is inapposite. In the Agere scenario, Waterside was

9

Zotos is also factually distinguishable. Zotos originally used its own employees to staff
problematic salvage operations, Zotos decided which products it wanted its contractor to salvage,
and Zotos abandoned waste from its salvage operations at its own plant. W.R. Grace & Co.--Conn.
v. Zotos Int'l, Inc., No. 98-CV-838S, 2013 WL 5488939, at *31 (W.D.N.Y. Sept. 30, 2013). “At
every step preceding actual disposal, Zotos owned and was responsible for returned product, set
policies governing returns, and made all decisions relative to the ultimate fate of returned goods.”
Id. at *32.

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the third party and 38 COAH had the control to transfer the hazardous material to Waterside prior
to the disposal. 10 Edgewater also cites to Morton’s indication that “general knowledge that waste
disposal is an inherent or inevitable part of the process arranged for by the defendant may suffice
to establish liability.” Morton at 678. Yet, Edgewater has not cited authority that extends this
proposition to the facts here—a disposal that occurred 15 years after the sale of the Alcoa Property
in 1997.
To the extent Edgewater argues that Arconic’s initial sale contemplated a demolition of
Building 12, Arconic points out that North River and Arconic subsequently agreed that Building
12 would remain standing. A SOMF ¶ 35. After the initial sale of the Alcoa Property, Fred Daibes
decided not to demolish Building 12 and instead put it to beneficial use. A SOMF ¶ 35. As a
result, in 1999, the parties entered into an Environmental Indemnity Agreement (“EIA”), which
stated that Arconic would have no responsibility for Building 12. A SOMF ¶¶ 37, 38; Parker Cert.,
Ex. 17. Any intent for disposal that Arconic possessed in 1997 did not survive past the EIA—at
which point Building 12 was no longer required to be demolished. The intent to dispose is critical
to a finding of arranger liability, see Burlington, 556 U.S. at 612, and is absent here. 11
Congress intended CERCLA to require a party “actually responsible for any damage,
environmental harm, or injury from chemical poisons” to share in the cost of cleanup. Bestfoods,

10

The potential liability for Waterside, 38 COAH, and related Defendants is addressed in the
Court’s Opinion dated June 30, 2021.
11

The Court is not indicating that a party can escape CERCLA liability via contract or
indemnification agreement. See 42 U.S.C. § 9607(e)(1) (“No indemnification, hold harmless, or
similar agreement or conveyance shall be effective to transfer from the owner or operator of any
vessel or facility or from any person who may be liable for a release or threat of release under this
section, to any other person the liability imposed under this section.”). Instead, the EIA is relevant
to Arconic’s intent to dispose of Building 12.

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524 U.S. at 55–56, 118 S. Ct. 1876. Edgewater has not alleged that Arconic had any involvement
with the actual decision to dispose of the Building 12 materials at Veterans Field nor has Edgewater
cited to any case in which arranger liability has extended as far as Edgewater proposes it should in
this case. Because there is no genuine dispute of material fact, Arconic’s motion for summary
judgment on Count II is granted and Edgewater’s motion for summary judgment on the count is
denied.
Having so decided, the Court does not reach Arconic’s argument that Edgewater failed to
comply with the National Contingency Plan. Further, Arconic’s motion to strike the supplemental
affidavit of Thomas Bambrick submitted by Edgewater is moot. That affidavit goes solely to
Edgewater’s arguments as to compliance with the National Contingency Plan. Arconic’s motion
(D.E. 402) to strike is therefore denied as moot.
E. Spill Act
Both parties also move for summary judgment on Edgewater’s New Jersey Spill Act
claim. 12 The Spill Act is the New Jersey analog to CERCLA 13 and was passed before CERCLA.
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

12

In this section, Edgewater’s brief in support of its motion (D.E. 349) for summary judgment will
be referred to as “Pl. Spill Act Brf.”; Arconic’s brief in opposition (D.E. 373) will be referred to
as “Def. Spill Act Brf.”; and Edgewater’s brief in reply (D.E. 399) will be referred to as “Pl. Spill
Act Reply.”
13

At the same time, there are some important differences between the Spill Act and CERCLA.”
New Jersey Dep't of Env't Prot. v. Dimant, 51 A.3d 816, 831-32 (2012) (reviewing differences
between the two acts as to liability and causation).

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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 one 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. Dimant, 51
A.3d 816, 829 (2012) (citing N.J.S.A. 58:10–23.11g(c)(1)). 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 Dimant, the New Jersey Supreme Court addressed the liability of a dry cleaner for
groundwater contamination. In analyzing the requisite nexus for liability under the Spill Act, the
Dimant court concluded that the phrase “in any way responsible” requires some connection
between the discharge complained of and the alleged discharger. Id. at 830. Once a party is found
responsible for a discharge, the court in Dimant continued, there also must be a nexus between the
discharge and the contaminated site for which cleanup costs are incurred. Id. at 831. The New
Jersey Supreme Court concluded that “through the requirement of a connection between the
discharge, over which the party had some control or responsibility, and the Spill Act response to
the damage, the focus in the Spill Act remains on proof of a connection between the discharge
complained of and the resultant Spill Act response.” Id. at 831.

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To be clear, the discharge at issue here is the one occurred at Veterans Field rather than the
discharge that apparently occurred at the Building 12 site. In addition, this matter is not a
traditional “two-site” case in which hazardous substances are released at one site and then migrate
to another. Id. at 834-35. The traditional scenario would be met if, for example, a discharge at
Building 12 migrated to wells at an adjacent site.
Edgewater argues that Arconic is “in any way responsible” by virtue of its generation of
the PCBs at the Alcoa Property and its prior ownership of Building 12. However, Edgewater has
not cited any case imposing Spill Act liability under similar circumstances. Instead, Edgewater
relies on New Jersey Tpk. Auth. v. PPG Indus., Inc., 197 F.3d 96 (3d Cir. 1999), a case in which
Spill Act liability was not imposed. Pl. Spill Act Brf. at 3. As discussed, Arconic did not own,
possess, or control Building 12 at the time its hazardous materials were disposed of at Veterans
Field, and had not for approximately 15 years. See Dimant, 51 A.3d at 830 (reviewing prior
decisions and the nexus requirement as to “holding liable a party who was not directly responsible
for the discharge that had occurred, but who nevertheless had some control over the direct
discharger in each matter” (emphasis added)).

Arconic was not the discharger of the

contamination at Veterans Field and was not involved in any decisions or actions concerning the
discharge. Because there is no genuine dispute of material fact, 14 Arconic’s motion for summary
judgment on Count I is granted, and Edgewater’s motion for summary judgment on the count is
denied.

14

Edgewater has also not cited any authority which extends Spill Act liability to Arconic even if
Arconic was aware of the two undisclosed USTs beneath Building 12.

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IV.

CONCLUSION
For the foregoing reasons, Arconic’s motion (D.E. 344) for summary judgment is

GRANTED as to Counts I and II and DENIED as to Counts VII, VIII, and IX; Edgewater’s motion
(D.E. 349) for summary judgment is DENIED; Edgewater’s motion (D.E. 352) for summary
judgment is DENIED; and Arconic’s motion (D.E. 402) to strike is DENIED as moot. An
appropriate Order accompanies this Opinion.
Dated: July 19, 2021
______ _
__________________________
__ __
__________________________
hn Michael
n i h
S D.J
John Michael Vazquez, U.S.D.J.
U.S.D.J.

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