Borough of Edgewater v. Waterside Construction, Llc et al

BRIEF in Opposition

D.N.J.January 23, 2017

3891091-1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 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. (formerly known as “Aluminum Company of America”); ALCOA DOMESTIC LLC, as successor in interest to A.P. NEW JERSEY, INC.; JOHN DOES 1-100; and ABC CORPORATIONS 1-100, Defendants, and WATERSIDE CONSTRUCTION, LLC; 38 COAH, LLC; DAIBES BROTHERS, INC.; NORTH RIVER MEWS ASSOCIATES, LLC; and 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 and RIVER ROAD IMPROVEMENT PHASE II, INC., Third-Party Defendants. Civil Action No. 2:14-CV- 05060 (JMV-JBC) Filed Electronically Motion Return Date: February 6, 2017 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 1 of 23 PageID: 4394 3891091-1 PLAINTIFF‟S BRIEF IN OPPOSITION TO THE ALCOA DEFENDANTS‟ MOTION FOR PARTIAL DISMISSAL OF THE THIRD AMENDED COMPLAINT Timothy E. Corriston Connell Foley LLP 85 Livingston Avenue Roseland, NJ 07068 973.535.0500 973.535.9217 Attorneys for Plaintiff Borough of Edgewater Of Counsel: Timothy E. Corriston On the Brief: Nicole B. Dory Meghan K. Musso Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 2 of 23 PageID: 4395 TABLE OF CONTENTS 3891091-1 PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ............................... 3 LEGAL ARGUMENT .............................................................................................. 6 POINT I .................................................................................................................. 6 EDGEWATER‟S COMMON LAW CLAIMS ARE NOT PREEMPTED BY CERCLA 6 A. Legal Standard ........................................................................................... 7 B. The Alcoa Defendants Have Failed to Establish that Edgewater‟s Common Law Claims are Preempted By Section 114(b) of CERCLA ...................................................................... 9 C. The Alcoa Defendants Have Failed to Establish that Edgewater‟s Unjust Enrichment Claim Is Preempted by §107 of CERCLA .................................................................................... 14 CONCLUSION ....................................................................................................... 18 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 3 of 23 PageID: 4396 ii 3891091-1 TABLE OF AUTHORITIES Cases Ashtabula River Corp. Group II v. Conrail, Inc., 549 F. Supp. 2d 981 (N.D. Ohio 2008) ................................................................13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...........................................................................................7, 8 California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272 (1987) ............................................................................................................... 8 Cont’l Title Co. v. Peoples Gas Light & Coke Co., No. 96 C 3257, 1999 U.S. Dist. LEXIS 22206 (N.D. Ill. Mar. 18, 1999) .....................................13 E.I. Dupont De Nemours & Co. v. United States, 508 F.3d 126 (3d Cir. 2007) .................................................................................15 Edgewater v. Waterside Construction, LLC et al., Civ. No. 2:14-CV-05060 (District of New Jersey) Docket No. 187 at page 45 ...........................................11 Ford Motor Co. v. Edgewood Props., No. 06-1278, 2008 U.S. Dist. LEXIS 84776, at *40 (D.N.J. Oct. 16, 2008) ...................... 10, 12 In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) ................................................................................... 7 In re Reading Co., 115 F.3d 1111 (3d Cir. 1997) ................................................................ 8, 9, 15, 16 Lenox Inc. v. Reuben Smith Rubbish Removal, 91 F. Supp. 2d 743 (D.N.J. 2000) .......................................................................................... 13, 17 Manor Care, Inc. v. Yaskin, 950 F.2d 122, (3d Cir. 1991) ............................................................................9, 11 MPM Silicones, LLC v. Union Carbide Corp., 931 F.Supp.2d 387 (N.D.N.Y 2013) ....................................................... 12, 14, 17 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 4 of 23 PageID: 4397 iii 3891091-1 Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010) .................................................................................13 North River Mews Associates, LLC et al. v. Alcoa Corp et al., No. 2:14-cv-0812 (D.N.J. May 19, 2016) ............................................................17 Pinker v. Roche Holdings, Ltd., 292 F.3d 361 (3d Cir. 2002) ................................................................................... 8 Queens West Dev. Corp. v. Honeywell Int’l, Inc., Civ. No. 10- 4876, 2011 WL 3625137, 2011 U.S. Dist. LEXIS 91795 at *18-19 (D.N.J. August 17, 2011)......................................................................................12 SC Holdings, Inc. v. A.A.A. Realty Co., 935 F. Supp. 1354 (D.N.J. 1996) ............................................................................ 7 Scheuer v. Rhodes, 416 U.S. 232 (1974) ............................................................................................... 7 Statutes 42 U.S.C. § 9614(b) ................................................................................................... 9 Rules Federal Rules of Civil Procedure 12(b) .................................................................7, 8 Federal Rules of Civil Procedure 8(d) ....................................................................... 6 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 5 of 23 PageID: 4398 1 3891091-1 PRELIMINARY STATEMENT Plaintiff Borough of Edgewater (“Edgewater” or “the Borough”) respectfully submits this brief in opposition to the motion for partial dismissal of the Third Amended Complaint filed by defendants Alcoa Inc. (“Alcoa”) and Alcoa Domestic LLC as predecessor in interest to A.P. New Jersey, Inc. (“Alcoa Domestic or A.P.”) (collectively “Alcoa Defendants”). After unsuccessfully opposing Edgewater‟s motion to file the Third Amended Complaint to assert certain common law claims, the Alcoa Defendants now file the instant motion that seeks to dismiss Edgewater‟s negligence, unjust enrichment and strict liability claims against the Alcoa Defendants. The only basis asserted is that these claims are preempted by the Comprehensive Environmental Response, Compensation & Liability Act of 1980 (“CERCLA”), because the Borough purportedly seeks to recover the same response costs under the common law claims. This allegation is patently false, as the Borough has clearly sought consequential and other damages beyond responses costs in connection with the strict liability, negligence and unjust enrichment claims pled against the Alcoa Defendants. At the very least, this clear evidence of alleged damages other than response costs creates a dispute of material fact. Furthermore, CERCLA does not preempt Edgewater‟s common law claims where damages other than response Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 6 of 23 PageID: 4399 2 3891091-1 costs are sought. Accordingly, the Alcoa Defendants‟ motion is without merit and/or is premature and must be denied. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 7 of 23 PageID: 4400 3 3891091-1 STATEMENT OF FACTS AND PROCEDURAL HISTORY Edgewater includes herein only those facts necessary for the Court‟s consideration in deciding the pending motion, which must be based upon the pleadings. This matter involves the substantial detriment suffered by Edgewater, its residents and the public from the illegal and unauthorized disposal of Polychlorinated Biphenyls (“PCB”) contaminated fill material on Veteran‟s Field in or around 2013 that originated from the former Alcoa site located at 660 River Road, Edgewater, New Jersey (“Former Alcoa Site”). Veteran‟s Field is a public park with fields, courts, playgrounds, a picnic area, and a community center. Veteran‟s Field is Edgewater‟s only outdoor recreational facility and encompasses all of its fields for its various youth sports programs. In or around 2011, Edgewater undertook a project for significant improvements to Veteran‟s Field (“the Project”). In or around 2013, PCB- contaminated fill material from the Former Alcoa Site was illegally dumped and spread on Veteran‟s Field, resulting in significant costs and damages to the Borough. As a result, on or about August 12, 2014, Edgewater filed this suit against a number of responsible parties, including the Alcoa Defendants. As it relates to this matter, the Alcoa Defendants are prior owners, operators, arrangers and/or generators of the Former Alcoa Site and the PCB-contaminated fill material that Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 8 of 23 PageID: 4401 4 3891091-1 was illegally dumped and spread on Veteran‟s Field. Namely, Alcoa previously owned and operated the Former Alcoa Site, which operations are well-known to have resulted in significant and wide-spread PCB contamination of the Former Alcoa Site, including Building 12. Thereafter, in 1991, Alcoa settled a lawsuit with a later owner of the Former Alcoa Site over the PCB contamination found on the Former Alcoa Site, by which Alcoa agreed to take title to the Former Alcoa Site through a wholly-owned subsidiary, A.P. New Jersey, Inc. (now Alcoa Domestic). Alcoa Domestic thereafter sold the Former Alcoa Site to defendant North River Mews Associates, LLC (“North River Mews”), and agreed to pay for the remediation of the Former Alcoa Site, including Building 12. The PCB- contaminated material illegally dumped on Veteran‟s Field originated from Building 12 on the Former Alcoa Site. Edgewater filed its initial Complaint on August 12, 2014, and subsequently filed a First Amended Complaint on August 22, 2014, adding new factual allegations. Thereafter, the various defendants filed Answers, Counterclaims, and Cross claims. Edgewater thereafter filed a Second Amended Complaint on or about May 6, 2015 to reflect the proper names of the Alcoa Defendants. On March 23, 2016, Edgewater initially sought the consent of all parties to amend the Complaint to include certain additional common law claims by way of Consent Order. But, Edgewater was unable to obtain the consent of all parties. A Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 9 of 23 PageID: 4402 5 3891091-1 status conference was held before Judge Clark on or about May 3, 2016, at which time Edgewater explained that it intended to file an amended complaint to add additional common law claims and that not all parties had consented to the amendment. Pursuant to Judge Clark‟s directive, Edgewater timely filed a motion to amend the complaint, which the Alcoa Defendants opposed. By way of a December 16, 2016 Order and Opinion, Judge Clark granted Edgewater‟s motion to amend the Complaint to add the common law claims. Accordingly, Edgewater filed the Third Amended Complaint on December 20, 2016. The Alcoa Defendants then immediately filed the instant motion for partial dismissal and are the only parties attempting to seek dismissal of the newly added claims. Edgewater now files this opposition respectfully requesting that this Court deny the Alcoa Defendants‟ motion for partial dismissal of the Third Amended Complaint. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 10 of 23 PageID: 4403 6 3891091-1 LEGAL ARGUMENT POINT I EDGEWATER’S COMMON LAW CLAIMS ARE NOT PREEMPTED BY CERCLA The Alcoa‟ motion must be denied, as their arguments are fundamentally incorrect because: (1) Edgewater‟s pleading of common law claims do not constitute a double recovery under CERCLA, and (2) Edgewater‟s common law claims are not preempted by §113(f) of CERCLA. First, the Alcoa Defendants‟ erroneous claim that Edgewater seeks a double recovery through the added claims is false and simply ignores the detailed damages summary that Edgewater has already submitted to all parties. Rather, by adding these common law claims, Edgewater merely seeks to be made whole for the substantial damages it has incurred. As detailed herein, there is clear evidence that the Borough‟s common law claims seek damages other than cost recovery under CERCLA. Furthermore, at the very least, the common law claims can be pled as an alternative basis for recovery of any damages. Fed. R. Civ. P. 8(d)(2); 8(d)(3). Moreover, the Alcoa Defendants‟ motion must be denied because the case law cited in support is wholly distinguishable from the facts and legal claims involved in this action. Furthermore, the Alcoa Defendants‟ preemption argument is inherently flawed because the Third Circuit has never held that common law claims are preempted by §107 CERCLA cost recovery claims. Indeed, that ruling has only Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 11 of 23 PageID: 4404 7 3891091-1 been made in the limited circumstances of §113(f) CERCLA contribution claims, which are not applicable and have not been asserted in this matter. Not only is the case law cited by the Alcoa Defendants completely irrelevant to this matter, but the relevant case law actually supports a finding that Edgewater‟s common law claims are not preempted by §107 of CERCLA. Accordingly, as a matter of law and as further articulated herein, Edgewater‟s common law claims against the Alcoa Defendants are proper and the pending motion for partial dismissal must be denied. A. Legal Standard Rule 12(b)(6) authorizes dismissal of a complaint for failure “to state a claim upon which relief can be granted.” Fed R. Civ. P. 12(b)(6). Pursuant to Rule 8(a)(2), a complaint need present “only a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the … claim is and the grounds upon which it rests.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Under this standard, “[t]he Court may not dismiss a complaint unless plaintiff can prove no set of facts which would entitle him to relief.” SC Holdings, Inc. v. A.A.A. Realty Co., 935 F. Supp. 1354, 1360-1361 (D.N.J. 1996). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 12 of 23 PageID: 4405 8 3891091-1 To withstand a motion to dismiss, then, a plaintiff must allege “only enough facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. Accordingly, when evaluating a 12(b)(6) motion, a court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374, fn 7 (3d Cir. 2002). Here, the Alcoa Defendants claim that the Borough‟s common law claims are preempted by CERCLA. Preemption analysis requires the court to determine the intent of Congress. In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997), quoting California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 280 (1987). “Congress may manifest its intent when it expressly preempts state regulation, when it implicitly preempts state regulation by so occupying the field with comprehensive federal regulation that it leaves no room for state law, or, again implicitly, when there is an actual conflict between state and federal law.” Id. “Conflict may arise either because „compliance with both federal and state regulations is a physical impossibility,‟ or because the state law stands „as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‟” Id. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 13 of 23 PageID: 4406 9 3891091-1 The Alcoa Defendants have failed to establish any basis for preemption of the Borough‟s common law claims under CERCLA, and therefore the Alcoa Defendants‟ motion for partial dismissal of the Third Amended Complaint must be denied. B. The Alcoa Defendants Have Failed to Establish that Edgewater’s Common Law Claims are Preempted By Section 114(b) of CERCLA The Alcoa Defendants cannot prove that Edgewater‟s negligence, strict liability and unjust enrichment claims are preempted by §114(b) of CERCLA, as these common law claims seek damages in addition to response costs sought under §107 of CERCLA. The Third Circuit has held that CERCLA does not explicitly preempt all state law, nor does it create a comprehensive scheme of regulation leaving no room for supplementation. Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125-26 (3d Cir. 1991); In re Reading Company, 115 F. 3d 1111, 1117 (3d Cir. 1997). Notably, §114(b) merely prohibits a party from “recovering compensation for the same removal costs or damage or claims pursuant to any State or Federal law.” 42 U.S.C. § 9614(b). This provision does not bar Edgewater from asserting common law claims for damages other than response costs, or as alternative claims. This District, in a case with very similar facts, has recognized that where a plaintiff seeks damages “beyond cost recovery, and thus, outside CERCLA‟s scheme,” the common law claims are not preempted. Ford Motor Co. v. Edgewood Props., No. 06-1278, 2008 U.S. Dist. LEXIS 84776, at *40 (D.N.J. Oct. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 14 of 23 PageID: 4407 10 3891091-1 16, 2008) The Borough‟s common law claims seek damages other than response costs, and therefore are not preempted by CERCLA. Contrary to the Alcoa Defendant‟ allegations, Edgewater‟s damages include not only the significant response costs Edgewater incurred, but also consequential damages, other than response and remediation costs, that resulted from the illegal dumping of PCB contaminated crushed concrete that originated from the Former Alcoa Site all over Veteran‟s Field. This illegal dumping not only caused the Borough to respond and remediate, but also significantly delayed a public project and caused the Borough to incur enormous consequential damages for, among other things, re-bidding costs, bond and obligation costs, legal notices, damage to equipment and property, and loss of use. In addition, the Borough‟s damages include the costs the Alcoa Defendants would have incurred if they had met their legal obligation to properly remediate and dispose of PCB contaminated materials from Building 12 on the Former Alcoa Site. These consequential damages are the basis of Edgewater‟s negligence, strict liability and unjust enrichment claims. The Alcoa Defendants‟ claim that the Borough‟s Third Amended Complaint only seeks responses costs is patently false. Namely, paragraph (g) of the Third Amended Complaint‟s Prayer for Relief specifically requests “compensatory, incidental, consequential and liquidated damages.” See Third Amended Complaint, Edgewater v. Waterside Construction, LLC et al., Civ. No. 2:14-CV-05060 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 15 of 23 PageID: 4408 11 3891091-1 (District of New Jersey)(“Edgewater”) Docket No. 187 at page 45-46. Further, the Borough already specifically articulated the additional damages sought beyond responses costs in the very motion to amend that resulted in the filing of the Third Amended Complaint. See Edgewater Docket No. 140 at 10-11, 13-14; Edgewater Docket No. 155 at 2-4. Furthermore, the Alcoa Defendants cannot dispute that, during the course of this litigation, the Borough has asserted specific consequential damages beyond response costs as to the Alcoa Defendants. Even to the extent the Alcoa Defendants may argue this provision is somehow unclear, which the Borough denies, the Borough respectfully submits that any alleged ambiguity can easily be corrected by way of amending the Prayer for Relief in the Third Amended Complaint to specifically include reference to the Alcoa Defendants as to the damages sought in paragraph (g). See Edgewater Docket No. 187 at page 45-46. To the extent the Court is so inclined, the Borough would respectfully seek permission to file a Fourth Amended Complaint that specifically identifies Alcoa and Alcoa Domestic as the parties against which the damages in paragraph (g) of the Prayer for Relief are sought. The Alcoa Defendants also ignore that the Borough‟s common law claims are entitled to be pled in the alternative and are, therefore, not preempted. See Manor Care, Inc. v. Yaskin, 950 F.2d 122, 127 (3d Cir. 1991)(“Congress did not intend for CERCLA remedies to preempt complementary state remedies”); Ford Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 16 of 23 PageID: 4409 12 3891091-1 Motor Co. v. Edgewood Props., No. 06-1278, 2008 U.S. Dist. LEXIS 84776, at *40 (D.N.J. Oct. 16, 2008)(“While a plaintiff is barred from recovering under CERCLA „compensation for the same removal costs or damages‟ available under state law, CERCLA does not preempt state law claims providing damages under alternative theories of liability and damages.”) The mere allegation that the Borough‟s common law claims could potentially include response costs is of no moment, as the case law in this Circuit is clear that the Borough is permitted to plead such claims in the alternative and any determination as to double recovery is more appropriately considered at the judgment stage. Queens West Dev. Corp. v. Honeywell Int’l, Inc., Civ. No. 10-4876, 2011 WL 3625137, 2011 U.S. Dist. LEXIS 91795 at *18-19 (D.N.J. August 17, 2011); see also MPM Silicones, LLC v. Union Carbide Corp., 931 F.Supp.2d 387, 406-407 (N.D.N.Y 2013). Therefore, even though the Borough is not required to precisely enumerate its damages for any claim pursuant to Rule 8(a), the Borough has in fact pled damages other than response costs as to the Alcoa Defendants and, further, it is permitted to plead such claims in the alternative. As an initial matter, these cases are distinguishable as none involve motions to dismiss or motions to amend. The Alcoa Defendants‟ arguments are more properly made to oppose recovery of a judgment, rather than to dismiss adequately pled common law claims based on some hypothetical recovery. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 17 of 23 PageID: 4410 13 3891091-1 The Alcoa Defendants‟ position is unsupported by precedent in this District as well as the non-binding case law cited in Defendants‟ own brief. For example, Alcoa cites Ashtabula River Corp. Group II v. Conrail, Inc., 549 F. Supp. 2d 981 (N.D. Ohio 2008) and Cont’l Title Co. v. Peoples Gas Light & Coke Co., No. 96 C 3257, 1999 U.S. Dist. LEXIS 22206 (N.D. Ill. Mar. 18, 1999) for the proposition that the Borough‟s added claims are barred as a double recovery. Those cases are inapposite because, as noted above, the Borough‟s added claims do not seek solely remediation damages. For example, in Cont’l Title, the court found that plaintiff‟s restitution claims were duplicative because they sought remediation costs. Id. at *41. In Ashtabula, it was undisputed that the plaintiff was seeking the exact the same damages under its CERCLA and common law claims. Id. at 986. The Ashtabula court, however, specifically noted: “[w]here a plaintiff's set of damages recoverable under § 107 are not identical to the set of damages recoverable under state law, the causes of action are not seeking double recovery and the state law claims are not preempted.” Id. (emphasis added). Similarly, there is no wholesale preemption of unjust enrichment claims in CERCLA actions. Only where courts have determined that an unjust enrichment claim seeks response and removal costs recoverable under CERCLA have such claims been precluded. See Lenox Inc. v. Reuben Smith Rubbish Removal, 91 F. Supp. 2d 743, 753 (D.N.J. 2000); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 139 (2d Cir. 2010). Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 18 of 23 PageID: 4411 14 3891091-1 In sum, the Alcoa Defendants have failed to and cannot meet their burden of establishing that Edgewater‟s common law claims are preempted as double recovery under §114(b) of CERCLA. Edgewater has adequately pled and asserted damages other than response costs as to the Alcoa Defendants and, further, it is permitted to plead such common law claims in the alternative. Accordingly, the Alcoa Defendants‟ motion for partial dismissal must be denied. C. The Alcoa Defendants Have Failed to Establish that Edgewater’s Unjust Enrichment Claim Is Preempted by §107 of CERCLA Contrary to the Alcoa Defendants‟ allegations, Edgewater‟s unjust enrichment claim is not preempted by §113(f) of CERCLA; in fact §113(f) has no bearing or relevance to this action. In this matter, the Borough asserted a §107 cost recovery claim under CERCLA against the Alcoa Defendants. The Alcoa Defendants have failed to cite any binding legal authority holding that §113(f) preempts common law claims brought in conjunction with §107 cost recovery claims. Moreover, the relevant case law instead confirms that such common law claims are not preempted by CERCLA. Unjust enrichment claims pled in conjunction with §107 cost recovery claims are not preempted by §113(f) of CERCLA. MPM Silicones, LLC v. Union Carbide Corp, 931 F.Supp.2d 387, 402-403 (N.D.N.Y March 18, 2013). The Alcoa Defendants have failed to establish any binding, legal authority to the contrary. Instead, they cite only to cases involving §113(f) contribution claims under Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 19 of 23 PageID: 4412 15 3891091-1 CERCLA, where the court found state law claims were preempted by CERCLA because an actual conflict existed between the statutory settlement scheme applicable to § 113(f) contribution claims and the common law claims pled. See ECF 190-1 at 6-7. This distinction is critical because §107 cost recovery actions are permitted where a party has incurred response costs during a voluntary clean- up of a site, whereas §113(f) provides a statutory right of contribution to potentially responsible parties who is liable by settlement or judgment to a federal or state government under a § 106 or §107 CERCLA action. In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997). In this case, Edgewater is not liable by settlement or judgment to any governmental entity. Rather, Edgewater, as a municipal entity, has been significantly damaged and expended numerous sums, which include but are not limited to response costs, to voluntarily remediate and remove the PCB contaminated fill material that was illegally dumped on Veteran‟s Field and originated from the Former Alcoa Site. Thus, the case law cited by the Alcoa Defendants is inapposite because it only applies to §113(f) contribution claims, and not to the §107 cost recovery claims actually pled by Edgewater in this action. See E.I. Dupont De Nemours & Co. v. United States, 508 F.3d 126, 134- 135 (3d Cir. 2007). As such, for the reasons noted above, the only binding authority actually cited by the Alcoa Defendants in support of this motion, In re Reading Co., 115 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 20 of 23 PageID: 4413 16 3891091-1 F.3d 1111 (3d Cir. 1997), is not applicable to Edgewater‟s §107 cost recovery claims. In Reading, the Third Circuit held only that a state law contribution claims were preempted by §113(f) of CERCLA because it found an actual conflict existed with the statutory settlement scheme applicable to §113(f) contribution claims asserted in that matter. In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997). The Third Circuit noted that §113(f) of CERCLA created a settlement system for such statutory contribution claims, aimed at the efficient resolution of environmental disputes, including protection from contribution for settling parties and increased potential damages for parties who refuse to settle. Id. at 1119. The Third Circuit found that the potentially responsible parties‟ state law contribution claims were preempted by §113(f) in that instance, because such state law claims “would create a path around the statutory settlement scheme” of §113(f). Id. at 1117 (emphasis added). Accordingly, the basis for preemption in Reading was specific to the §113(f) contribution claim and the “actual conflict” between the common law contribution claim and the §113(f) settlement scheme for CERCLA‟s statutory contribution. However, this statutory settlement scheme only applies to § 113(f) contribution claims against other companies by potentially responsible parties who have been sued by the federal or state government under §106 or §107. Reading, 115 F.3d at 1119. Therefore, Reading is inapplicable to Edgewater‟s unjust Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 21 of 23 PageID: 4414 17 3891091-1 enrichment claim in this matter, where Edgewater has only asserted a §107 cost recovery claim under CERCLA for its voluntary cleanup of Veteran‟s Field. MPM Silicones, LLC, 931 F.Supp.2d at 402-403 (“a private PRR‟s state-law claims brought concurrently with its CERCLA § 107(a) claim are not preempted as conflicting with §113(f)‟s settlement scheme”). Likewise, the North River Mews Associates, LLC et al. v. Alcoa Corp et al., No. 2:14-cv-0812 (D.N.J. May 19, 2016) and Lenox, Inc. v. Reuben Smith Rubbish Removal, 91 F. Supp. 2d 743 (D.N.J. 2000) cased cited by the Alcoa Defendants are similarly inapplicable, as they involve §113(f) contribution claims and preemption of state law claims based on conflict with CERCLA‟s §113(f) settlement scheme.1 As detailed above, Edgewater‟s common law claims brought in conjunction with its §107 cost recovery claim under CERCLA are not subject to the preemption based upon §113(f) of CERCLA. The Alcoa Defendants have not cited any binding legal authority to the contrary. Accordingly, the Alcoa Defendants cannot establish that Edgewater‟s unjust enrichment claims are preempted by the §113(f) of CERCLA and, accordingly, the instant motion for partial dismissal must be denied. 1 The same analysis applies to the non-binding Illinois cases cited in the Alcoa Defendants‟ moving brief. See Docket Entry No. 190-1 at 6-7. Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 22 of 23 PageID: 4415 18 3891091-1 CONCLUSION The Borough respectfully requests that the Court issue an order denying the Alcoa Defendants‟ Motion for Partial Dismissal of the Third Amended Complaint. Respectfully submitted, By: s/Timothy E. Corriston Timothy E. Corriston Connell Foley LLP 85 Livingston Avenue Roseland, NJ 07068 973.535.0500 973.535.9217 Attorneys for Plaintiff Borough Edgewater Dated: January 23, 2017 Case 2:14-cv-05060-JMV-JBC Document 201 Filed 01/23/17 Page 23 of 23 PageID: 4416