That is, EPNG cannot circumvent the RCRA special venue provision by combining its RCRA citizen suit subsection (a)(1)(A) and (a)(1)(B) claims against all Defendants with an APA claim against DOE that could otherwise be brought in this Court pursuant to the general venue statute. Likewise, EPNG cannot circumvent Congress’ specific direction by combining its subsection (a)(1)(A) and (a)(1)(B) claims against all Defendants with a nondiscretionary claim against EPA under subsection (a)(2), 42 U.S.C. § 6972(a)(2). /8 Case 1:07-cv-00905-RJL Document 8 Filed 07/27/2007 Page 16 of 19 (...continued)/8 suit will not result in any venue gap.

Id. F. CONCLUSION On the basis of the arguments above, NCRW requests the Court deny Exxon’s motion to dismiss in each of its elements, and find that each of NCRW’s claims for relief [Claims 1, 3, 4 and 5] pursuant to 42 U.S.C. § 6972 (a)(1)(A) are well-pleaded in reliance upon the facts of this case as recited in NCRW’s Complaint and Notice of Violations. In the event that some of NCRW’s pleadings may be deemed vague with respect to the causes of action alleged or the Case4:10-cv-00534-PJH Document18 Filed06/02/10 Page23 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4:10-cv-00534 PJH PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT EXXON MOBIL CORPORATION’S MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) 19 relief requested, NCRW requests the Court allow NCRW to amend its Complaint so that this action may proceed, and that the interests of justice may be achieved.

Wirtz addresses a very different venue provision in the Labor-Management Reporting and Disclosure Act and violations of environmental regulations relating to waste management were not at issue. /2 EPNG further concedes that it failed to provide pre-suit notice of violations to the District of Columbia, as required by 42 U.S.C. § 6972(b) for violations alleged to have occurred in the District. See Opp’n.

See In re Franklin Savings Corp., 385 F.3d 1279, 1286 (10th Cir. 2004). Third, 42 U.S.C. § 6972(a), the RCRA citizen suit provision discussed above, supra at 3, also does not provide either a cause of action, a jurisdictional basis or a waiver of immunity to allow a claim against DOE based on the allegation that NMED failed to comply with procedural requirements imposed by state law. Finally, 28 U.S.C. § 1367 provides for supplemental jurisdiction over related claims in matters in which the court already has jurisdiction; it does not, however, itself establish jurisdiction, let alone create a cause of action or waive federal sovereign immunity.

The Clean Water Act’s and RCRA’s fee-shifting provisions specifically allow for recovery of “costs of litigation” that include expert witness fees. See 33 U.S.C. § 1365(d); 42 U.S.C. § 6972(e). An attorney’s compensable costs also “include reasonable out-of-pocket litigation expenses that would normally be charged to a fee paying client,” and court costs.

For actions alleging imminent and substantial endangerment, notice must be given at least 90 days prior to commencing suit; for suits alleging a violation of a permit, order or regulation issued under RCRA, notice must be given at least 60 days prior to commencing suit. 42 U.S.C. §§ 6972(b)(2)(A), 6972(b) (1)(A). Failure to give notice deprives the district court of jurisdiction to hear a citizen suit claim under RCRA.

RCRA’s intervention provision only recognizes the presumption at issue if proven by a governmental entity. 42 U.S.C. § 6972(b)(2)(E) (the Court shall grant intervention as of right where all other requirements are met “unless the Administrator or the State shows that the applicant’s interest is adequately represented by existing parties.”).

Any action brought under paragraph (a)(2) of this subsection may be brought in the district court for the district in which the alleged violation occurred or in the District Court of the District of Columbia. See 42 U.S.C. § 6972(a) (emphasis added). Under this provision, EPNG can bring its paragraph (a)(2) claim either in the district “in which the alleged violation occurred” or in the District of Columbia.

Case 3:12-cv-08176-SMM Document 125 Filed 08/26/16 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9 NRA/SCI’s MOTION TO DISMISS pole seepage—“released into the environment as a natural, expected consequence of its intended use”—is ‘solid waste,’ then “everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses would be . . . potentially actionable under 42 U.S.C. § 6972(a)(1)(B).” Id. at 517-18.

Section 7003 of RCRA, which authorizes the Administrator of EPA to bring suit, has a similar standard of liability as RCRA section 7002(a)(1)(B), which authorizes citizens to bring suit. Compare 42 U.S.C. § 6973(a) with 42 U.S.C. § 6972(a)(1)(B) (both establishing liability for any person who has “contributed or who is contributing” . . .). Case 3:12-cv-08176-SMM Document 123 Filed 08/12/16 Page 11 of 19 12 0 1 2 3 4 5 6 7 8 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the materials throughout the process, and had hired Aidex to manufacture the pesticides for them.