Borough of Edgewater v. Waterside Constr., LLC
| Decision Date | 30 June 2021 |
| Docket Number | Civil Action No. 14-5060 |
| Parties | BOROUGH OF EDGEWATER, Plaintiff, v. WATERSIDE CONSTRUCTION, LLC; 38 COAH , LLC; DAIBES BROTHERS, INC.; NORTH RIVER MEWS ASSOCIATES, LLC; FRED A. DAIBES; TERMS ENVIRONMENTAL SERVICES, INC.; ALCOA INC.; ALCOA DOMESTIC, LLC, as successor in interest to A.P. NEW JERSEY, INC.; HUDSON SPA, LLC; JOHN DOES 1-100; 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. |
| Court | U.S. District Court — District of New Jersey |
Not for Publication
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
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").
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 wasconveyed 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.
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 assignedto 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.
Edgewater first filed suit on August 12, 2014. D.E. 1. The Alcoa Defendants filed a Third-Party 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:
Multiple parties have filed multiple motions for summary judgment. The motions are as follows:
This Opinion address only the motions filed by Edgewater for summary judgment against the Waterside Entities. (D.E. 347, 348, 350, 353).
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 summaryjudgment. Id. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage...
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