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The Newark Group, Inc v. Dopaco

March 14, 2012

THE NEWARK GROUP, INC.,
PLAINTIFF,
v.
DOPACO, INC. AND DOES 1-10,
DEFENDANTS.



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

ORDER

A. Defendant's Motions in Limine

i. Defendant's Motion in Limine No. 1

Defendant seeks to preclude Plaintiff from introducing any evidence regarding methane in support of Plaintiff's RCRA claim, arguing Plaintiff "has failed to satisfy the citizen suit notice provisions of [RCRA] with respect to methane." (Def.'s Mot. 2:3-4.) Further, Defendant argues "[c]compliance with [the] RCRA presuit notice requirement provision is a jurisdictional prerequisite to filing suit." Id. 4:2-3. Plaintiff opposes the motion, contending "[t]his is an improper use of a motion in limine." (Pl.'s Opp'n 2:1-2.)

RCRA "notice provisions are jurisdictional: Absent compliance with a required notice provision, [a court] lack[s] subject matter jurisdiction to hear the RCRA claims." Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir. 2004); see also Cntr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009) ("[T]he giving of a 60-day notice is not simply a desideratum; it is a jurisdictional necessity."). Therefore, since "a party may raise jurisdictional challenges at any time during the proceedings," Defendant's motion is proper. Int'l Union of Operating Eng'rs v. Cnty. of Plumas, 559 F.3d 1041, 1043 (9th Cir. 2009) (internal quotation marks omitted).

The Environmental Protection Agency promulgated the following regulation concerning the RCRA presuit notice requirement:

Notice regarding an alleged violation of a permit, standard, regulation, condition, requirement, or order which has become effective under [RCRA] shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice.

40 C.F.R. § 254.3(a) (2011). "It follows logically that the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit." Cntr. for Biological Diversity, 566 F.3d at 800. "[T]he notice must be sufficient in itself and, perforce, if the desired change has been properly delineated and has been accomplished, that, too, obviates the need or purpose of a citizen suit." Id. at 801. In sum, there exists a "requirement that there be a true notice that tells a target precisely what it allegedly did wrong, and when." Id.

Defendant argues in its reply brief that under the Ninth Circuit standard, Plaintiff's notice of intent ("NOI") "did not include sufficient information to allow Dopaco to remediate the alleged methane contamination beneath the concrete foundation of the main building on the Property." (Def.'s Reply 2:11-13.) Plaintiff's NOI to Defendant states as follows:

This notice is based upon Dopaco's release of hazardous substances at its former printing facility in Stockton, California which "may present an imminent and substantial endangerment to health or the environment" within the meaning of RCRA section 7002(a)(1)(B). . . .

Newark conducted an environmental investigation of the property that revealed soil and groundwater contamination with toluene, a hazardous substance. Dopaco used toluene as a solvent in its printing operations, and Newark's investigation demonstrated that the Site contamination was due to Dopaco's activities. Dopaco used solvents and water-based inks in its container printing operation. A November 26, 1985 Notice of Violation from the California Regional Water Quality Control Board confirms that Dopaco was responsible for spilling waste ink, solvents, and red ink at the Site. A copy of the notice is enclosed with this letter. Dopaco further owned and operated underground storage tanks used for such solvents but did not test or obtain an environmental assessment when those tanks were removed as is currently required under California law. . . .

In its action, Newark will seek injunctive relief under RCRA for solid or hazardous waste contamination of soils and groundwater, which may pose, separately and collectively, an imminent and substantial endangerment to the environment. . . .

Newark's ultimate goal is the cleanup of soil and groundwater at the Site. . . . (Pulliam Decl. Ex. 1; ECF No. 273.) The information included in the NOI is sufficient to permit Defendant to identify "the specific . . . regulation . . . which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice." 40 C.F.R. § 254.3(a).

The crux of Defendant's argument in its motion, however, is that "the NOI . . . does not identify the contaminant-methane gas-upon which the alleged RCRA violation is based." (Def.'s Mot. 7:3-4.) Defendant bases this argument on the following principle stated in Brod v. Omya, Inc., 653 F.3d 156 (2d Cir. 2011): when an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation.

Id. at 169. However, in making this argument, Defendant misconstrues Plaintiff's RCRA claim; specifically, Defendant makes the conclusory assertion that methane is a contaminant under RCRA and argues that the presence of methane is the sole basis for the alleged violation. Rather, as stated by Plaintiff in its opposition brief, Brod "is a far different situation than here, where methane itself is not a RCRA hazardous waste, nor was methane actually used by Dopaco in its operations. Rather, [Plaintiff alleges] the methane is a natural metabolite of the actual RCRA hazardous waste at issue-the toluene." (Pl.'s Opp'n 8:23-25.) Therefore, even assuming, arguendo, the Second Circuit's requirement that each alleged contaminant be specifically enumerated in the NOI were to apply here, Plaintiff's NOI is sufficient.

Further, Defendant argues "Newark's presuit notice failed to identify the . . . proper area of contamination" since "Newark's NOI only identified alleged toluene contamination in the area of two waste tanks located approximately 300 feet from the northwest corner of the main building." (Def.'s Reply 3:3-8.) However, this argument is contradicted by the plain language of the NOI; for example, the NOI clearly references "underground storage tanks" as a potential source of the alleged toluene contamination. (Pulliam Decl. Ex. 1.)

Therefore, for the stated reasons, Defendant's motion is DENIED.

ii. Defendant's Motion in Limine No. 2

Defendant seeks to exclude "evidence regarding the toluene product tank and its piping" which Plaintiff contends supports its RCRA claim, arguing "any release of toluene from the toluene product tank or its piping falls outside the scope of [RCRA]." (Def.'s Mot. 2:3-6.) Plaintiff opposes the motion, arguing "Dopaco's argument addresses the merits of Newark's claim that these leaks constitute 'disposals' of 'solid waste' as those terms are defined by RCRA. In other words, Dopaco's argument does not go to admissibility of Newark's evidence, but rather to how RCRA applies to it as a matter of law." (Pl.'s Opp'n 4:1-4.) Since this motion involves law and motion issues which should have been noticed for hearing before the prescribed last hearing date for such matters, it is DENIED.

iii. Defendant's Motion in Limine No. 3

Defendant seeks to preclude Plaintiff from introducing any evidence regarding the waste tanks since Plaintiff has "ruled out the waste tanks as a potential source of the contamination" and "admitted that evidence related to the waste tanks is 'Not a Material Fact.'" (Def.'s Mot. 3:6-8.) Defendant argues this evidence is irrelevant under Federal Rule of Evidence ("FRE") 401 and therefore inadmissible under FRE 402. Id. 3:3-10. Plaintiff counters, arguing that evidence regarding the waste tanks is still "directly relevant to Dopaco's general carelessness with respect to its chemical handing practices which in turn is relevant to, among other issues, Newark's negligence causes of action." (Pl.'s Opp'n 2:11-13.)

Defendant responds to this argument in its reply brief, contending that any evidence regarding the waste tanks "is irrelevant and inadmissible hearsay, and should be excluded as character evidence." (Def.'s Reply 2:7-8.) Further, Defendant enumerates the specific documents it seeks to exclude. However, this argument is disregarded since it was made for the first time in Defendant's reply brief. See U.S. v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006)("Issues raised for the first time in an appellant's reply brief are generally deemed waived."); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007)("The district court need not consider arguments raised for the first time in a reply brief.").

Since it is unclear what evidence is involved in this motion, and the record lacks sufficient factual context for an in limine ruling on this issue, this motion is DENIED.

iv. Defendant's Motion in Limine No. 4

Defendant seeks to preclude Plaintiff from using Brian Gleason, Ben Valverde, and David Ascher as trial witnesses, arguing Plaintiff did not disclose these witnesses in accordance with Rule 26. In response, Plaintiff "voluntarily withdraws its general counsel David Ascher from the witness list, but [argues] the other two witnesses (Ben Valverde and Brian Gleason) can come as no surprise to Dopaco given the repeated ...


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