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Moran v. Vaccaro

ELR Citation: 18 ELR 21108
Nos. No. 87 Civ. 7993 (RWS), 684 F. Supp. 1201/27 ERC 1601/(S.D.N.Y., 04/15/1988)

The court rules that the jurisdictional requirement established in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, for Federal Water Pollution Act citizen suits applies to citizen suits under §304 of the Clean Air Act. The court holds that plaintiffs' complaint, which fails to allege an ongoing or intermittent violation on the part of defendants, must be dismissed. The court holds that plaintiffs' citizen suit is also subject to dismissal because plaintiffs failed to comply with the 60-day notice requirement of §304(b). The court holds that an amendment to plaintiffs' complaint alleging intermittent violations is barred by an intervening enforcement action by the Environmental Protection Agency and would violate the 60-day notice requirement, since the new allegations would not arise out of the same occurrence as those in the first complaint and would not relate back to the original date of filing.

Counsel for Plaintiffs
Arthur Z. Schwartz
Clifton & Schwartz
401 Broadway, New York NY 10013
(212) 431-8512

Counsel for Defendants
Richard J. Giglio, Dianne M. O'Malley
Consolidated Edison Co. of New York
4 Irving Place, New York NY 10003
(212) 460-3486