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The Newark Group, Inc v. Dopaco

September 26, 2011


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


Defendant Dopaco, Inc. ("Dopaco") filed a motion for partial summary judgment on Plaintiff The Newark Group's ("Newark") Resource Conservation and Recovery Act ("RCRA") claim in this RCRA citizen suit. Dopaco argues it is entitled to summary judgment on this claim since Newark cannot show that the alleged toluene contamination at 800 West Church Street in Stockton, California (the "Property") presents an imminent and substantial endangerment to health or the environment, or that Dopaco contributed to the alleged toluene contamination. (Def.'s Mot. 1:5-10.)

Newark opposes Dopaco's motion by showing that degrading toluene in the soil is the cause of a high concentration of methane existing in the area on the Property where Newark plans to fracture the basement floor. Newark contends that when the floor is fractured, this methane will present an imminent and substantial endangerment to health or the environment. Further, Newark argues it has shown Dopaco's use of toluene contributed to the high methane concentration on the Property. (Pl.'s Opp'n 2:17-19.)


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). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, [the defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). If the moving party satisfies its initial burden, "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. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The "non-moving plaintiff cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).

Further, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).

Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted).

Evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010).


Newark is the current owner of the Property. Six entities have owned or leased the Property since its conversion into an industrial site in 1917: Fibreboard Corporation ("Fibreboard"), Pacific Paperboard Products ("Pacific Paperboard"), Gold Bond Building Products ("Gold Bond"), San Joaquin Packaging Company ("San Joaquin"), Dopaco, and Newark. (Dopaco's Statement of Undisputed Facts ("SUF") ¶¶ 7-11.) Fibreboard, Pacific Paperboard, Gold Bond, and Dopaco each used toluene on the Property, and Newark used "toluene containing substances," on the Property. Id. ¶¶ 7-9, 11.

From 1981 to 1988, Dopaco was Gold Bond's tenant in the basement of a building on the northwest corner of the Property. (Order Denying Pl.'s Mot. for Partial Summ. J., Apr. 2, 2010 ("Order") 3:8-11.)*fn1 While a tenant, Dopaco stored "the toluene it used in a 4,000 gallon storage tank . . . and in 55-gallon drums. Dopaco pumped toluene from the [tank] through piping that ran from the [tank] to the interior of the building . . . ." Id. 3:21-4:2 (internal citations and quotation marks omitted).

On May 17 and September 23, 1985, representatives of the California Regional Water Board, Central Valley Region ("Regional Board") and the San Joaquin Environmental Health Department ("SJEHD") inspected the Property. (Order 5:13-15.) Following the inspections, the Regional Board issued Gold Bond a Notice of Violation ("NOV") requiring "Gold Bond to submit a technical report addressing items set out in the findings and recommendations of the November 23, 1985 memorandum accompanying the NOV." Id. 5:20-22.

Gold Bond retained American Environmental Management Corporation ("AEMC") to prepare an excavation plan. (SUF ¶ 19.) This excavation plan was implemented in September 1986, and involved a "soil sampling plan . . . for definition of the horizontal and vertical extent of soil pollution, if any, resulting from tank leakage and the obvious spills surrounding the tanks," and the removal of the six product tanks. Id. ¶¶ 20, 23-26. Soil samples were collected from ten feet below the product tanks and from twelve feet below the waste tanks. Id. ¶ 27. Although toluene was detected beneath the product tanks at levels ranging between 3 and 36 parts per billion ("ppb"), these levels were below 100 ppb, the state minimum requiring remedial action. Id. ¶¶ 28-30. AEMC concluded "the results indicate that although soil contamination exists, it is limited in degree and is not a probable threat to groundwater." Id. ¶ 30. AEMC recommended backfilling the excavations. Id.

On May 24, 1988, a Gold Bond plant manager performed a property inspection and noted in a June 13, 1988 memo that "no hazardous waste was found 'nor was there any visible evidence of hazardous materials which would be the responsibility of [Dopaco] to remove.'" Id. ¶ 36. The lease between Gold Bond and Dopaco subsequently ended. (Order 6:22-24.)

In 1989, Newark purchased the Property from Gold Bond. Id. 3:6-7. In 2005, "a prospective purchaser of the Property retained environmental consultant Advanced GeoEnvironmental, Inc. ("AGE") ...

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