City of Hurricane, West Virginia et al v. Disposal Service, Incorporated et al
Filing
22
MEMORANDUM OPINION AND ORDER denying 6 MOTION to Dismiss for Improper Notice under the Resource Conservation and Recovery Act. Signed by Judge Robert C. Chambers on 8/6/2014. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CITY OF HURRICANE, WEST VIRGINIA and
THE COUNTY COMMISSION OF PUTNAM
COUNTY, WEST VIRGINIA,
Plaintiffs,
v.
CIVIL ACTION NO. 3:14-15850
DISPOSAL SERVICE INCORPORATED,
a West Virginia Corporation and
WASTE MANAGEMENT OF WEST VIRGINIA,
INCORPORATED, a Delaware Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Defendants‟ Motion to Dismiss [for Improper Notice under the Resource
Conservation and Recovery Act], ECF No. 6. For the reasons explained below, the Court DENIES
this Motion.
I.
Background
After providing notice on April 25, 2014, to the Administrator of the U.S. Environmental
Protection Agency (“EPA”), the State of West Virginia, and Defendants Disposal Service, Inc.
(“DSI”), and Waste Management of West Virginia, Inc. (“Waste Management”), Plaintiffs City of
Hurricane, West Virginia, and The County Commission of Putnam County, West Virginia, filed
the instant case in this Court on May 5, 2014. See Compl. ¶ 7, ECF No. 1; Ex. A, Compl., ECF No.
1 at 34-46. Plaintiffs allege that Defendants improperly and unlawfully disposed of hazardous
wastes and solid wastes in Hurricane, West Virginia,—which is located within Putnam County,
West Virginia—at a landfill which is owned and operated by DSI and also operated by Waste
Management. Compl. ¶¶ 1-2. The specific wastes alleged to have been improperly disposed of by
Defendants are three commercial chemicals: “Crude MCHM”—a chemical mixture containing
methanol—, propylene glycol phenyl ether (“PPH”), and dipropylene glycol phenyl ether
(“DiPPH”). Id. ¶¶ 13-14, 29.
Under Count I, Plaintiffs bring a citizen suit against Defendants pursuant to
§ 7002(a)(1)(B) of the federal Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
§ 6901 et seq., for, among other allegations, contributing to the present disposal of solid and
hazardous waste which may present an imminent and substantial endangerment to health or the
environment. 42 U.S.C. § 6972(a)(1)(B); Compl. ¶¶ 75-86. Count II alleges that Defendants are
responsible for a nuisance affecting public health as used in West Virginia Code § 16-3-6, and
Count III alleges that Defendants are responsible for a public nuisance under Article 1135 of the
Hurricane, West Virginia, Code of Ordinances. Compl. ¶¶ 90-05, 98-103. Plaintiffs request
various types of declaratory relief, injunctive relief, restitution, and costs. Id. at 31-32.
Plaintiffs allege that this Court has federal question jurisdiction, pursuant to 28 U.S.C.
§ 1331, over the RCRA claim and that, thus, the Court has supplemental jurisdiction, pursuant to
28 U.S.C. § 1367, over the remaining two claims, though these two remaining claims do not arise
under federal law. Compl. ¶¶ 4-5.
In the instant Motion to Dismiss, Defendants argue that Plaintiffs‟ RCRA claim must be
dismissed—either for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) or for failure to state a claim upon which relief can be granted under Rule 12(b)(6)—due
to Plaintiffs‟ failure to abide by the statutory notice requirements explicitly required by RCRA
§ 7002, under which Plaintiffs bring their sole federal count. In particular, Defendants argue that
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Plaintiffs failed to give the ninety days of notice required under the statute before commencing this
suit and that Plaintiffs cannot prove that they are entitled to the sole exception to this notice
requirement. As a result, Defendants argue, Count I must be dismissed, and this Court should
refuse to exercise supplemental jurisdiction over Counts II and III.
In their Response, ECF No. 11, Plaintiffs do not contest that they failed to follow the
ninety-day statutory notice requirement; however, they contend that their RCRA claim does
qualify for the exception to this requirement. Defendants filed a Reply, ECF No. 12, and, shortly
thereafter, filed a motion, ECF No. 13, requesting that this Court consider a letter from the EPA
regarding MCHM, ECF No. 13-1. In its June 30, 2014, Order granting that motion, this Court
requested further briefing from both sides regarding the impact of the letter on the Motion to
Dismiss. ECF No. 14. Pursuant to this request, Defendants filed a Supplemental Reply, ECF No.
15, and Plaintiffs filed a Supplemental Response, ECF No. 16. The instant Motion to Dismiss is
now ripe for resolution.
II.
Regulatory Framework
Plaintiffs bring the RCRA portion of this case under 42 U.S.C. § 6972(a)(1)(B), which
states,
Except as provided in subsection (b) . . . of this section, any person may commence
a civil action on his own behalf . . . against any person, including the United States
and any other governmental instrumentality or agency, to the extent permitted by
the eleventh amendment to the Constitution, and including any past or present
generator, past or present transporter, or past or present owner or operator of a
treatment, storage, or disposal facility, who has contributed or who is contributing
to the past or present handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which may present an imminent and substantial
endangerment to health or the environment . . . .
Id. (emphasis added). Subsection (b) of § 6972 states, inter alia,
No action may be commenced under subsection (a)(1)(B) of this section prior to
ninety days after the plaintiff has given notice of the endangerment to--3-
(i) the Administrator;
(ii) the State in which the alleged endangerment may occur;
(iii) any person alleged to have contributed or to be contributing to the past or
present handling, storage, treatment, transportation, or disposal of any solid or
hazardous waste referred to in subsection (a)(1)(B) of this section,
except that such action may be brought immediately after such notification in the
case of an action under this section respecting a violation of subchapter III of this
chapter.
Id. § 6972(b)(2)(A) (emphasis added).
Subchapter III of the RCRA deals with the management of hazardous waste. See id.
§§ 6921-6939g. Subchapter I defines “hazardous waste” for the overall chapter—apparently
including Subchapter III—as:
a solid waste, or combination of solid wastes, which because of its quantity,
concentration, or physical, chemical, or infectious characteristics may-(A) cause, or significantly contribute to an increase in mortality or an increase
in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed of, or
otherwise managed.
Id. § 6903(5). However, § 6921, part of Subchapter III, dictates that the Administrator of the EPA
is responsible for “promulgat[ing] regulations identifying the characteristics of hazardous waste,
and listing particular hazardous wastes (within the meaning of section 6903(5) of this title), which
shall be subject to the provisions of this subchapter.” Id. § 6921(b)(1) (emphasis added); see also
Edison Elec. Inst. v. U.S. E.P.A., 2 F.3d 438, 441 (D.C. Cir. 1993) (“[The] RCRA itself does not
include a list of hazardous wastes nor a specific method for determining whether a waste is
hazardous. Instead, the statute defines „hazardous waste‟ generally . . . . [Through § 6921(b)(1),]
Congress directed the [EPA] to identify hazardous wastes . . . .”).
Pursuant to § 6926, also part of Subchapter III, the Administrator of the EPA may authorize
a state to administer and enforce its own hazardous waste program “in lieu of” the federal
Subchapter III program, as long as the state program is “equivalent to” and “consistent with” the
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federal program and provides adequate enforcement of compliance with the requirements of
Subchapter III. 42 U.S.C. § 6926(b). West Virginia received such authorization from the EPA in
1986, and the state has implemented its own hazardous waste program through the Hazardous
Waste Management Act (“HWMA”), W. Va. Code §§ 22-18-1 to -25. West Virginia Final
Authorization of State Hazardous Waste Management Program, 51 Fed. Reg. 17739-01 (May 15,
1986); W. Va. Code § 22-18-2(b)(4) (“[T]he purpose[] of this article [is] . . . [t]o assume regulatory
primacy through Subtitle C of the [RCRA],” which is codified as Subchapter III.). The HWMA
defines “hazardous waste” to mean “a waste or combination of wastes, which because of its
quantity, concentration or physical, chemical or infectious characteristics, may: (A) [c]ause, or
significantly contribute to, an increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored, transported, disposed of or otherwise
managed.” W. Va. Code § 22-18-3.
Pursuant to the HWMA, the West Virginia Department of Environmental Protection
(“WVDEP”) administers the state‟s hazardous waste program. See id. § 22-18-4. 1 Under the
HWMA, the Director of the WVDEP is responsible for the promulgation of rules “establishing
criteria for identifying the characteristics of hazardous waste, identifying the characteristics of
hazardous waste and listing particular hazardous wastes which are subject to the [HWMA].” Id.
§ 22-18-6(a)(2) (emphasis added). However, such rules “shall be consistent with but no more
expansive in coverage nor more stringent in effect than the rules and regulations promulgated by
the [EPA] pursuant to the [RCRA].” Id. § 22-18-6(a). Through a legislative rule, the WVDEP has
adopted, for the purposes of the state‟s hazardous waste program, the EPA‟s regulations regarding
1
See
also
Agency
History,
W.
Va.
Dep‟t
of
Envtl.
Prot.,
http://www.dep.wv.gov/Pages/OrganizationalHistoryandOverview.aspx (last visited July 29, 2014) (“In . . . 2001 . . .
the Division of Environmental Protection became the Department of Environmental Protection.”).
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the identification and listing of hazardous wastes under the federal Subchapter III program, with
exceptions which the parties agree do not apply to this case. W. Va. Code R. § 33-20-3 (“The
provisions of 40 C.F.R. part 261 are hereby adopted and incorporated by reference with the
modifications, exceptions and additions set forth in this section.”).
Part 261 of Title 40 of the Code of Federal Regulations contains the rules that the EPA has
promulgated regarding the identification and listing of hazardous wastes under Subchapter III of
the RCRA. See 40 C.F.R. § 261.1(a), (b). This part defines “hazardous waste” to be a solid waste
which, among other options, 1) “exhibits any of the characteristics of hazardous waste identified in
subpart C of this part,” 2) “is listed in subpart D of this part,” or 3) is “a mixture of solid waste and
one or more hazardous wastes listed in subpart D of this part,” and which is not otherwise
excluded. Id. § 261.3(a). Subpart C lists four characteristics of hazardous waste: ignitability,
corrosivity, reactivity, and toxicity. See id. § 261.20 to .24. Toxicity, in particular, is demonstrated
through a very specific testing protocol, the “Toxicity Characteristic Leaching Procedure, test
Method 1311.” Id. § 261.24. Subpart D specifically lists methanol as a hazardous waste, with very
specific and detailed exclusions. See id. §§ 261.31(a), 261.33(f).
III.
Analysis
Plaintiffs allege that the specific chemical wastes disposed of by Defendants at the landfill
in Hurricane—Crude MCHM, PPH, and DiPPH—resulted in widespread ailments, including skin
and eye irritation, nausea, diarrhea, and vomiting, when approximately 10,000 gallons of these
chemicals accidentally leaked into the water source for hundreds of thousands of West Virginians
in January 2014. They argue that these chemicals are, therefore, “toxic” under Subchapter III.
Indeed, it is alleged that the resulting waste from the cleanup after this leakage—at least nine
truckloads of it—is precisely the waste that is at issue in this case. Plaintiffs additionally allege that
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the West Virginia Test Assessment Project, launched by the West Virginia Bureau for Public
Health in February 2014 to evaluate the spilled chemicals, reported that very limited toxicological
data had been reported for Crude MCHM—or even for pure MCHM—and that the EPA, despite
having developed a national system providing toxicology information to the public, lists no
toxicology information for any of these spilled chemicals. Plaintiffs further argue that Crude
MCHM, in particular, contains methanol—a listed hazardous waste under Subchapter III of the
RCRA—and is thus itself a “hazardous waste” under Subchapter III.
Defendants argue that Plaintiffs have failed to prove that any of the three chemical wastes
involved in this suit qualifies as a hazardous waste under Subchapter III of the RCRA. They point
out that Plaintiffs have failed to prove—by using the testing protocol outlined in 40 C.F.R.
§ 261.24—the toxicity, as specifically defined under RCRA Subchapter III, of any of these
chemical wastes. They point out that none of the three chemical wastes at issue are themselves
listed by the EPA under subpart D. They also argue, through citations to various EPA publications
and rules, that the chemical waste in this case does not properly qualify as “a mixture of solid
waste and one or more hazardous wastes listed in subpart D of this part” as defined under 40
C.F.R. § 261.3(a)—despite the fact that Crude MCHM contains methanol. The flaw in
Defendants‟ argument is that they insist that Plaintiffs must wholly prove the facts at issue at this
early stage in the proceedings.
Though neither the U.S. Supreme Court nor the Fourth Circuit has directly ruled upon
whether the statutory notice provisions in the RCRA are jurisdictional,2 the Fourth Circuit has
implied that it considers such provisions to be jurisdictional:
2
See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 400 (4th Cir. 2011) (“Because we
conclude that Gaston‟s defense was timely raised, we need not determine whether the mandatory notice requirement
of § 1365(b)(1)(A) is jurisdictional in the strict sense of the term.” (internal quotation marks omitted)).
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We believe that the district court should have dismissed Beazer‟s RCRA claim
without prejudice. If a court does not have subject matter jurisdiction over a claim,
it can only dismiss without prejudice; it cannot reach the merits. We acknowledge
that the [U.S. Supreme] Court in Hallstrom did not determine whether the [RCRA]
notice provision was “jurisdictional in the strict sense of the term.” [Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 31 (1989).] However, the Court did give strong
indications that the provision was to have the same effect as a jurisdictional bar.
First, the Court stated that “the notice and 60-day delay requirements are
mandatory conditions precedent to commencing a suit under the RCRA citizen suit
provision.” Id. Second, the Court quoted a concurrence by Justice Brennan which
stated that “the requirement of exhaustion of state remedies was certainly a
mandatory precondition to suit, and in that sense a „jurisdictional prerequisite.‟”
Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 137 (1981)
(Brennan, J., concurring in judgment), quoted in Hallstrom, 493 U.S. at 31. Finally,
Hallstrom indicated that dismissal for failure to satisfy the notice provisions should
not prejudice the plaintiffs‟ ability to file suit after they had complied with the
provisions.
But see Beazer E., Inc. v. U.S. Navy, 111 F.3d 129, at *5 (4th Cir. 1997) (unpublished decision)
(emphasis added) (footnote omitted) (citation omitted). This Court will thus treat the instant
statutory notice issue as a jurisdictional issue.
The question of what burden is upon Plaintiffs at this early jurisdictional stage is analogous
to that which is upon a plaintiff who files a citizen suit under the Clean Water Act or the Surface
Mining Control and Reclamation Act, each of which requires that the plaintiff make a “good faith
allegation” of continuous or intermittent violation for jurisdictional purposes. See 30 U.S.C.
§ 1270(a)(1); 33 U.S.C. § 1365(a)(1); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 57 (1987). As this Court explained in Ohio Valley Environmental Coalition v.
Elk Run Coal Company, Inc., “[t]he issue of what evidence must be shown for jurisdictional
purposes is distinct from what evidence must be shown for a defendant to ultimately be held
liable.” No. CIV.A. 3:12-0785, 2014 WL 2526569, at *3 (S.D. W. Va. June 4, 2014). Analogizing
to the manner in which the jurisdictional amount requirement in diversity cases is tested for
sufficiency, this Court found that the proper test of whether a plaintiff has sufficiently made a good
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faith allegation for jurisdictional purposes is “„whether it appears to be a legal certainty that the
jurisdictional fact is not satisfied.‟” See id. at *4 (emphasis added) (quoting Chesapeake Bay
Found. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 1549 n.8 (E.D. Va. 1985), aff’d, 791
F.2d 304 (4th Cir. 1986), vacated on different grounds, 484 U.S. 49). Applying such a low
standard makes sense when assessing jurisdictional allegations. The complaint is filed before any
discovery takes place in a case, and it would be putting the cart before the horse to require
Plaintiffs to definitively prove their jurisdictional allegations at the outset of the case. This Court
will not—and may not—require that they do so.
Importantly, “when the jurisdictional facts and the facts central to a . . . claim are
inextricably intertwined, the trial court should ordinarily assume jurisdiction . . . . [In such a
situation,] a trial court should dismiss under Rule 12(b)(1) only when the jurisdictional allegations
are clearly immaterial, made solely for the purpose of obtaining jurisdiction or where such a claim
is wholly unsubstantial and frivolous . . . .” Kerns v. United States, 585 F.3d 187, 193 (4th Cir.
2009) (emphasis added) (citation omitted) (internal quotation marks omitted) (ellipsis omitted).
The jurisdictional allegation at issue here is that this citizen suit respects a violation of Subchapter
III of the RCRA and thus is exempt from the ninety day time lapse after notice requirement which
would otherwise attach to such an RCRA claim. More specifically, Plaintiffs allege that the waste
chemicals involved in this action are toxic or otherwise hazardous waste under Subchapter III of
the RCRA. This allegation is central to Plaintiffs‟ case and is thus not “clearly immaterial” or
made solely for the purpose of obtaining jurisdiction. Given Plaintiffs‟ allegations of evidence
showing the toxicity of the chemical waste and their allegation that the EPA may not have readily
available toxicological data on these chemicals—along with the fact that a Subchapter III listed
chemical comprises at least some of the chemical waste—this Court cannot say that Plaintiffs‟
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jurisdictional allegation that the waste chemicals involved in this action are toxic or otherwise
hazardous waste under RCRA Subchapter III is wholly unsubstantial and frivolous.
Additionally, the Second Circuit, Seventh Circuit, and Ninth Circuit, have all—mostly
without
determining
whether
the
statutory
notice
provisions
in
the
RCRA
are
jurisdictional3—ruled similarly upon an issue closely related to that presented in this case. These
rulings appear to place only a minimal burden upon the plaintiff—that his claim not be
frivolous—when determining whether he has sufficiently alleged that the action he brings
“respects” a violation of RCRA Subchapter III for notice purposes. First, looking to the underlying
purposes of the RCRA notice provisions and the catch-22 faced by a plaintiff alleging claims
involving both non-hazardous and imminently dangerous hazardous waste, the Second Circuit, in
Dague v. City of Burlington, ruled that a complaint which contains both an RCRA Subchapter III
claim and a closely-related non-RCRA Subchapter III claim—termed a “hybrid complaint”—is
entirely exempt from any notice provisions which would otherwise apply to the non-RCRA
Subchapter III claim. 935 F.2d 1343, 1351-52 (2d Cir. 1991), rev’d in part on other grounds, 505
U.S. 557 (1992). Recognizing the opportunity for abuse, the Dague court elaborated, “[I]f a
plaintiff should allege frivolous subchapter III claims, he would not only be subject to rule 11
sanctions, but his claims could also be dismissed early in the litigation process, and the court, by
stay or dismissal, could require full observance of the delay period.” Id. at 1352 (emphasis added);
see also Simsbury-Avon Pres. Soc’y, LLC. v. Metacon Gun Club, Inc., No. CIV. 3:04CV803JBA,
2005 WL 1413183, at *6 (D. Conn. June 14, 2005) (“To properly circumvent the notice otherwise
required by [the RCRA], a plaintiff‟s subchapter III claims must not be „frivolous‟ and must be
„closely related‟ to the non-subchapter III claims.” (citation omitted)), aff’d on other grounds sub
3
The Ninth Circuit has explicitly held that the statutory notice provisions in the RCRA are jurisdictional. See, e.g.,
Covington v. Jefferson Cnty., 358 F.3d 626, 636 (9th Cir. 2004) (“Both [RCRA] notice provisions are jurisdictional:
Absent compliance with a required notice provision, we lack subject matter jurisdiction to hear the RCRA claims.”).
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nom. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009); cf. Aiello v. Town of
Brookhaven, 136 F. Supp. 2d 81, 110 (E.D.N.Y. 2001) (“Congress‟s intent in balancing the
dangers of delay to health and the environment against encouraging nonjudicial and
nonadversarial resolution of environmental conflicts is best manifested by permitting the
immediate initiation of (a)(1)(B) imminent hazard suits whenever subchapter III hazardous
chemicals can fairly be alleged to be a component of the endangerment.” (emphasis added)).
The Seventh and Ninth Circuits have both followed suit. Covington v. Jefferson Cnty., 358
F.3d 626, 637 (9th Cir. 2004); AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342, 1350-51 (7th Cir.
1997). Additionally, the Seventh Circuit, in AM International, Inc. v. Datacard Corp., specified
that “whether a party has complied with [the] RCRA‟s notice and delay provisions is determined at
the time the complaint is filed” and thus, even if a non-frivolous Subsection III claim ultimately
fails on its merits, this ultimate failure does not negate the exemption from the RCRA‟s delay after
notice provision which the non-frivolous claim earned at the time the complaint was filed. See 106
F.3d at 1351; see also Dague, 935 F.2d at 1353 (“[C]ount I does not cease to be sufficient to keep
the „hybrid‟ complaint in court simply because count I ultimately proved to be unsuccessful.
Hallstrom[, 493 U.S. 20,] makes clear that the notice determination is to be made at the outset
. . . .”).
These “hybrid complaint” cases thus add additional support to this Court‟s determination
that Plaintiffs have adequately alleged a Subchapter III RCRA claim. See also Simsbury-Avon
Pres. Soc’y, 2005 WL 1413183, at *6 (“In the absence of controlling authority, plaintiff‟s
subchapter III claim will be deemed non-frivolous.”); Aiello, 136 F. Supp. 2d at 110 (“[T]he
presence of a subchapter III chemical in the leachate plume should . . . be considered as
non-frivolous for the purpose of obviating the need to comply with the delay period in regard to
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plaintiffs‟ (a)(1)(B) claim.”). Though Defendants attach to their Motion two different letters, one
from the EPA and one from the WVDEP, see ECF Nos. 6-1 and 13-1, stating that the chemical
waste at issue is not a “hazardous waste” under the RCRA, these letters do not alter this Court‟s
conclusion that Plaintiffs‟ Subchapter III RCRA claim was non-frivolous at the time the
Complaint was filed. First, the EPA letter was not written until after the Complaint was filed. See
ECF No. 13-1. Second, Plaintiffs properly point out that, without having conducted any discovery
in this case, they cannot know precisely what information was provided by Defendants to the
WVDEP before it concluded that, “[b]ased upon [the information submitted by Defendant DSI],
the WVDEP believes that this waste is not a hazardous waste under the [RCRA].” ECF No. 6-1 at
2, 4. Plaintiffs‟ nascent Subchapter III claim may ultimately fail; however, this is not the proper
context in which to make such an assessment.
Given this Court‟s determination that Plaintiffs have adequately alleged that this case
respects a violation of RCRA Subchapter III, Plaintiffs‟ RCRA claim is exempt from the ninety
day time lapse after notice requirement which would otherwise attach, under 42 U.S.C.
§ 6972(b)(2)(A), to Plaintiffs‟ RCRA citizen suit.
IV.
Conclusion
For the reasons explained above, Defendants‟ Motion to Dismiss [for Improper Notice
under the RCRA], ECF No. 6, is DENIED.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.
ENTER:
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August 6, 2014
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