The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING DOPACO'S MOTION FOR PARTIAL SUMMARY JUDGMENT*fn1
Defendant Dopaco, Inc. ("Dopaco") filed a motion for partial summary judgment on Plaintiff The Newark Group's ("Newark") Resource Conservation and Recovery Act ("RCRA") and negligence per se claims on April 30, 2010.*fn2 (Docket No. 91.) Dopaco argues it is entitled to summary judgment on these claims because Newark cannot show that the toluene contamination at 800 West Church Street in Stockton, California (the "Property") presents an imminent and substantial endangerment to health or the environment. (Dopaco Mot. for Partial Summ. J. 2:4-7.)
Newark opposes Dopaco's motion, arguing it has demonstrated that the toluene contamination on the Property presents an imminent and substantial endangerment because it plans on demolishing the buildings on the Property, which will result in toluene exposure; and soil vapor samples indicate the presence of methane at levels that are explosive and present an asphyxiation risk. (Newark Opp'n to Mot. for Partial Summ. J. 1:21-2:9.) Newark further argues that it is entitled to partial summary judgment on its RCRA claim based upon this evidence. (Id. 7:5-7.)
Dopaco objects in its reply brief to much of the evidence upon which Newark relies to oppose the motion. Newark filed a "response" to Dopaco's reply brief to which Dopaco also objects. Since Newark's "surreply" is unauthorized it is stricken. Empire Fire and Marine Ins. Co. v. Rosenbaum, No. CV-F-06-1458 OWW/WMW, 2007 WL 951699, at *1 n.2 (E.D. Cal. Mar. 28, 2007) (stating that "[a]bsent prior authorization, a sur-reply brief is not permitted by [the]... Local Rules of Practice for the Eastern District of California"); see also Williams v. Barteau, No. 1:08-CV-546 AWI DLB, 2010 WL 1135956, at *1 n.1 (E.D. Cal. Mar. 22, 2010) (finding that the Eastern District's Local Rules do not permit surreplies); Smith v. Pac. Bell. Tel. Co., Inc., 649 F. Supp. 2d 1073, 1083-84 (E.D. Cal. 2009) (same).
I. SUMMARY JUDGMENT LEGAL STANDARD
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis in original). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2nd Cir. 2009) (citations omitted); see also Town House, Inc. v. Paulino, 381 F.2d 811, 814 (9th Cir. 1967) (stating when "the burden of proof falls to the opposing party, [that party] must come forward with facts, and not allegations, to controvert the moving party's case").
All reasonable inferences that can be drawn from the facts "must be drawn in favor of the non-moving party." Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 2010). However, only admissible evidence may be considered. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (stating that "[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment") (citations omitted); Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (stating that "[i]t is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment").
Newark previously unsuccessfully moved for partial summary judgment on its RCRA claim, arguing in pertinent part: "since the toluene contamination on the Property is in excess of the standards set by the governmental regulatory agencies, th[e] contamination evidence is sufficient to show the existence of a hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Docket No. 90 9:11-15.)
The order denying Newark's motion was filed on April 2, 2010, and concluded:
Newark fail[ed] to establish that the contamination "may present an imminent and substantial endangerment to health or the environment...."
42 U.S.C. § 6972(a)(1)(B). Newark was required to show more than just that toluene contamination exists on the Property. The risk of endangerment from the toluene contamination "must be imminent for there to be a claim under RCRA." [citation omitted]... "In sum, evidence that certain samples taken from the [Newark Property] exceeded [government] standards simply provides an inadequate basis for a jury to conclude that federal law, specifically, [RCRA's citizen suit provision, § 7002(a)(1)(B),] [42 U.S.C. § 6972(a)(1)(B)], has been violated. Absent additional evidence, the mere fact that [Newark] has produced such samples does not support a reasonable inference that [the contamination on its Property] presents an imminent and substantial endangerment" to health or the environment. [citation omitted]... (Id. 13:15-14:15.)
Dopaco now argues it is entitled to partial summary judgment on Newark's RCRA and negligence per se claims, since Newark cannot demonstrate that the toluene contamination on the Property presents an imminent and ...