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Newark Group, Inc. v. Dopaco

April 1, 2010

THE NEWARK GROUP, INC., PLAINTIFF,
v.
DOPACO, INC., DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff, The Newark Group, Inc. ("Newark"), moves for partial summary judgment on its Resource Conservation and Recovery Act ("RCRA") claim in this RCRA citizen suit. Newark seeks an order holding Defendant Dopaco, Inc. ("Dopaco") jointly and severally liable for the contamination of toluene on its property. Dopaco was a former tenant on Newark's property before Newark purchased the property.

I. LEGAL STANDARD

When considering a summary judgment motion, all reasonable inferences are drawn from the evidence in the non-movant's favor. Hart v. Parks, 450 F.3d 1059, 1065 n.4 (9th Cir. 2006). Further, the movant "must adduce admissible evidence on all matters as to which [it] bears the burden of proof." Zands v. Nelson ("Zands II"), 797 F.Supp. 805, 808 (S.D. Cal. 1992).

II. REQUEST FOR JUDICIAL NOTICE

Newark requests that judicial notice be taken of "certain standards established by federal and state environmental agencies concerning various regulatory action levels for toluene contamination," and "of the fact that a chemical called Methyl Isobutyl Ketone ('MIBK') is a common constituent of the types of inks used in rotogravure printing, which is the alleged source of the toluene contamination at issue in this case." (Request for Judicial Notice ("RJN") 1.) Some of the documents are authored by the United States Environmental Protection Agency ("EPA"), the California Environmental Protection Agency ("California EPA"), the California Regional Water Quality Control Board, Central Valley Region, and the Interstate Technology & Regulatory Council. (RJN Ex. A-F.) Two of documents state that MIBK is used in rotogravure printing: one is authored by the EPA and the other by Eastman Chemical Company, a corporation that manufactures MIBK. (RJN Ex. G-H.)

Federal Rule of Evidence 201(b)(2) allows the court to take judicial notice of a fact not subject to reasonable dispute because it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The documents authored by federal and state agencies concern federal and state toluene standards or MIBK's use in rotogravure printing, and these documents come from "sources whose accuracy cannot reasonably be questioned." New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n. 22 (10th Cir. 2009)(taking judicial notice of data on web sites of federal agencies). Therefore, Newark's request for judicial notice of these federal and state agency documents is granted. Id.

The website Newark provides from Eastman Chemical Company showing that MIBK is used in "gravure printing inks" is not so easily verifiable. (RJN Ex. H.) Therefore, this portion of Newark's judicial notice request is denied.

III. Summary Judgment Facts Considered in Non-Movant's Favor

Newark is the current owner of the property located at 800 West Church Street in Stockton, California (the "Property"). Newark purchased the Property from Gold Bond in June 1989. (Dopaco's Statement of Undisputed Facts ("SUF") ¶ 1). When Gold Bond was the owner of the Property, Dopaco was Gold Bond's tenant in the basement of a building on the northwest corner of the Property from 1981 to 1988. (Id. ¶ 2). "While a tenant . . . Dopaco operated a rotogravure printing operation in the basement area it leased." (Id. ¶ 3). "During its time on the Property, Dopaco used both solvent and water-based inks and toluene was not used in conjunction with water-based inks;" "toluene was only used by Dopaco as diluent for top lacquer, and top lacquer[s] were not used on all printing jobs." (Id. ¶ 4).

Eight underground tanks are on the Property and are located "adjacent to the building on the northern boundary of the [P]roperty." (SUF ¶ 5, Avery Decl. ¶ 5.) Two of these tanks are storage product tanks and the remaining six are waste tanks. (Id.) Dopaco stored the toluene it used in a 4,000 gallon storage tank ("Toluene Tank") and in 55-gallon drums. (Id. ¶ 5.) Dopaco pumped toluene from the Toluene Tank "through piping that ran from the Toluene Tank to the interior of the building, where it was dispensed from wall-mounted nozzles." (Id. ¶ 6.) At times "Dopaco's rotogravure printing operation generated waste ink that contained toluene, which was disposed of into two other underground storage tanks ("waste tanks") on the Property." (Id. ¶ 7).

The Gold Bond Property was inspected by representatives of the California Regional Water Board, Central Valley Region ("Regional Board") and the San Joaquin Environmental Health Department ("SJEHD") on May 17 and September 23, 1985. (Id. ¶ 8) Following the inspections, the Regional Board issued Gold Bond a Notice of Violation ("NOV") in 1985 concerning "a discharge of red dye into McDougald Slough allegedly from the Gold Bond facility." (Id.; NOV at EHD0000722.) The NOV noted the following deficiencies when discussing Dopaco:

1. Fifty-five gallon drums of solvent are stored uncovered on an asphalt area adjacent to a paper storage warehouse. Runoff from this area is directed to McDougald Slough via the storm drain.

2. Workers in the plant stated press condensate water is routinely poured into loading dock sump. This sump discharges to the storm drain and McDougald Slough.

3. Waste ink and solvents are delivered to tanks #9 and 10 via underground lines or directly into the the tank from drums. Considerable spillage around poured tanks was evident. The practice of dumping waste drums into the tank by hand needs to be upgraded to prevent spills. (Id.; NOV at EHD0000723)(emphasis added.)

Subsequently, Gold Bond obtained a report authored by environmental engineer Donald K. Rothenbaum ("Rothenbaum"), who investigated the Property for Gold Bond in 1985 after Gold Bond received the ...


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