International Union v. Amerace Corp.

No. 86-1833 (D.N.J. October 4, 1989)

The court dismisses a union's Federal Water Pollution Control Act (FWPCA) citizen suit against predecessor and successor electroplating and metal finishing plant owners for wholly past FWPCA violations. The court first holds that the union failed to demonstrate the predecessor's FWPCA liability because the predecessor ceased being the plant's owner or operator when it sold the plant 13 months before suit, and thus could not have been in violation of any FWPCA effluent standard or limit when the union commenced suit. The predecessor extinguished its liability for FWPCA violations when it transferred ownership and control of the plant to the successor. Moreover, the union's citizen suit can have no prospective effect on the predecessor, a wholly past violator. The court observes in a footnote that although deterrence would be served in holding past owners and operators responsible for continuous or intermittent violations that began when the plant was under their control, the FWPCA's citizen suit provision does not recognize a general deterrence purpose. The court also holds moot the action against the predecessor because it could not reasonably be expected to repeat its past FWPCA violations. The court next holds that the successor cannot be held liable for the same wholly past violations. To hold the successor liable for the predecessor's violations when the predecessor itself cannot be held liable is anomalous. The successor did not contractually assume the predecessor's FWPCA liability because none existed at the time of purchase. Moreover, the union's FWPCA citizen suit against the predecessor is penal, and thus not a survivable action, because it involves a wrong to the public for which civil penalties would be paid to the government. The union does not allege that the successor is merely a continuation of the predecessor; nor that the successor's purchase of the predecessor's assets amounts to a consolidation, a merger, or a fraudulent scheme to escape liability. For the court to impose a per se rule of successor liability to encourage abatement of ongoing violations would usurp the legislative function. Had Congress intended to impose successor liability under the FWPCA, it would clearly have stated so. Finally, the court declines to impose sanctions against the union under Federal Rule of Civil Procedure 11. Given the predecessor's continuous violations while it owned and operated the plant and after it sold the plant, the union did not act unreasonably, frivolously, or in a harassing manner in suing both owners.

Counsel for Plaintiff
David Tykulsker
Ball, Livingston & Tykulsker
108 Washington St., Newark NJ 07102
(201) 622-4545

Counsel for Defendant
Sheldon Schachter
2330 Vauxhill Rd., Union NJ 07083
(201) 686-6000

[20 ELR 20394]

Debevoise, J.:^*

Opinion

In lieu of an answer, defendant Amerace Corporation, Inc. ("Amerace") moves to dismiss plaintiffs' second amended complaint under Rules 12(b)(1) and 12A(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). Amerace also moves for sanctions under Rule 11. Defendant Harvard Industries, Inc. ("Harvard") moves to dismiss all claims in plaintiffs' second amended complaint for alleged violations of the Clean Water Act (the "Act") that occurred prior to April 12, 1985. Plaintiffs International Union et al. cross-move for partial summary judgment as to counts I through IV of the second amended complaint.

At oral argument, on September 25, 1989, plaintiffs' counsel stated that plaintiffs were requesting summary judgment only with respect to violations occurring before April 12, 1985.

Background

After timely filing the requisite 60 day notice, plaintiffs commenced this citizen suit on May 12, 1985 pursuant to section 505(a) of the Clean Water Act.¹ 33 U.S.C. sec. 1365(a). Since then, the complaint has been amended twice. It was last amended in January 1989. The second amended complaint added new allegations of violations by Harvard and named Amerace as a defendant. On February 10, 1988, plaintiffs notified Amerace of their intention to name it as an additional defendant. In response, Amerace informed plaintiffs that it no longer owned the Elastic Stop Nut of America ("ESNA") plant and advised them of the Supreme Court's recent decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 98 L. Ed. 2d 306 [18 ELR 20941] (1987). Memorandum on Behalf of Defendant Amerace Corp., Inc. In Support of Its Motion to Dismiss and for Sanctions Under Rule 11 of the Federal Rules of Civil Procedure ("Amerace Brief"), Exhibit A.

Plaintiffs' second amended complaint seeks to enjoin Harvard from discharging pollutants from its ESNA plant in violation of section 307(d) of the Act, 33 U.S.C. sec. 1317(d), and to recover civil penalties from Harvard for Harvard's and Amerace's past violations. Plaintiffs also seek to recover civil penalties from Amerace for its violations of the Act when it owned and operated the ESNA plant.

On April 12, 1985, Harvard purchased the plant from Amerace. The asset purchase agreement between Harvard and Amerace specifically provided that Harvard would acquire only ESNA's physical assets, including its land, buildings, and manufacturing equipment. The collective bargaining agreement between Amerace and plaintiff Union, which had been operative between 1980 and 1985, was specifically excluded from the Amerace-Harvard purchase agreement. Subsequent to the transfer of title to Harvard, Local 726 struck and instituted various unfair labor practice actions. Harvard has not signed a collective bargaining agreement with any union and a substantial number of persons formerly employed by Amerace, including the individual plaintiffs named in the second amended complaint, have not been rehired. Harvard suggests that as the second amended complaint alleges numerous violations of the Clean Water Act since January 1980, but was filed only when the dispute between Harvard and the Union arose, this action is merely an attempt to force Harvard to enter into a collective bargaining agreement.

At all relevant times, the ESNA plant has been engaged in electroplating and metal finishing operations. As part of its electroplating operations, the plant discharges between 7,000 and 27,000 gallons of wastewater per day into the publicly owned treatment work ("POTW") of the Joint Meeting of Essex and Union Counties ("Joint Meeting").

In count I of the second amended complaint, plaintiffs allege [20 ELR 20395] that pursuant to section 307(b) of the Act, 33 U.S.C. sec. 1317(b), the plant is subject to the Environmental Protection Agency's ("EPA") general pretreatment regulations for existing and new sources since it discharges the wastewater from its electroplating and metal finishing operations into the Joint Meeting POTW. Plaintiffs further allege that as an industrial user, the plant is subject to the Joint Meeting POTW's local pretreatment standards, which are also enforceable under section 307(d) of the Act, 33 U.S.C. sec. 1317(d). Pursuant to these pretreatment standards, the plant is subject to the provisions of Industrial Wastewater Permit No. JM 7030 issued by the Joint Meeting, and/or the rules and regulations of the Joint Meeting.

According to plaintiffs, specific sampling demonstrates that since January 30, 1980 the wastewater discharges from the plant have regularly exceeded the applicable Joint Meeting discharge limitations for total cyanide ("CN-T"), amenable cyanide ("CN-A"), cadmium ("Cd"), and other metals, and for total toxic organics ("TTO"), pH, and other parameters.

In count III of the second amended complaint, plaintiffs allege that the plant is also subject to the categorical pretreatment standards for electroplating and metal finishing point sources promulgated by EPA pursuant to section 307(b) of the Act, 33 U.S.C. sec. 1317(b), because it discharges electroplating and metal finishing operations wastewater into the Joint Meeting POTW. According to plaintiffs, as a non-integrated facility (i.e., one where wastewater from an electroplating operation is not combined with other industrial wastewater), the plant was required to comply with the categorical pretreatment standards for electroplating by April 27, 1984, an interim TTO standard by June 30, 1984, and the metal finishing pretreatment standard by February 15, 1986.

Plaintiffs allege that specific sampling demonstrates that since April 27, 1984, wastewater discharges from the plant have regularly exceeded the electroplating and metal finishing categorical pretreatment standards for the same pollutants for which the plant has regularly been exceeding the Joint Meeting POTW pretreatment standards.

Also, in count III, plaintiffs allege that Amerace was in violation of section 307(d) of the Act, 33 U.S.C. sec. 1317(d), 40 C.F.R. sec. 403.12, because it failed to submit a baseline monitoring report ("BMR") to the Joint Meeting within 120 days of the effective dates of both the electroplating and metal finishing categorical pretreatment standards. According to plaintiffs, Amerace did not submit the required electroplating BMR until October 22, 1984, or more than 180 days after the electroplating pretreatment standard became effective, and the required metal finishing BMR was not submitted until February 1986. Plaintiffs also note that the October 1984 BMR included a certification that Amerace was not in compliance with the applicable pretreatment standards on a consistent basis.

In counts II and IV of the second amended complaint, plaintiffs allege that Harvard is the legal successor of Amerace and, consequently, assumed legal and financial liability for Amerace's violations of the applicable environmental laws and permits when it purchased the plant.

In counts I through IV, plaintiffs claim that pursuant to sections 309(b), (d) and 505(a), (d) of the Act, 33 U.S.C. secs. 1319(b), (d) and 1365(a), (d), defendants are subject to injunctive relief and civil penalties not to exceed $ 25,000 for each day of each violation of section 307 of the Act. 33 U.S.C. sec. 1317.

In support of plaintiffs' allegations that specific sampling demonstrates that the wastewater discharges from the plant regularly exceeded the applicable Joint Meeting POTW pretreatment standards since January 1989 and the applicable EPA electroplating and metal finishing categorical pretreatment standards since April 1984, plaintiffs filed numerous sampling reports of the ESNA plant's discharges to the Joint Meeting POTW. See Plaintiff's Affidavit. These sampling reports were prepared by the Joint Meeting or by certified laboratories for Amerace and Harvard.

Also, on plaintiffs' behalf, Carpenter Environmental Associates, Inc. ("CEA") prepared a report on the ESNA Plant's discharges into the Joint Meeting POTW based on a review of all documents provided by Harvard including reports on continued complaince, results of Joint Meeting tests, baseline monitoring reports, literature regarding Harvard's wastewater treatment system and correspondence. According to the report:

Over the entire period of records available to CEA, ranging from 1981 through February, 1988, the ESNA facilities . . . has failed to comply on a consistent basis with the effluent limits set by the Joint Meeting . . . . Harvard Industries has not complied on a consistent basis with the federally set metal finishing industry categorical standards. While, on occasion permit compliance has been reported, compliance has never been consistent. Over the entire period in question, including the most recent information available, Harvard Industries has, on a frequent basis, violated both monthly average and maximum daily discharge limitations for Cadmium, Total Cyanide (CN-T), and Cyanide Amenable to Chlorination (CN-A). In addition, there have been frequent violations of other metal limitations.

Plaintiff's Affidavit, Exhibit PP at 1-2.

Harvard disputes the facts as to actual violations and the presumption of the validity of the tests performed by the Joint Meeting and the certified laboratories. In support of its argument, Harvard filed an affidavit of Edwin Von Linden, ESNA Vice President of Operations. Defendant Harvard's Appendix to Brief ("Harvard Appendix"), Exhibit 7. According to Von Linden, many of the reported violations from 1981 through 1985 were, in fact, not violations, but the result of inadequate POTW testing procedures. Also, since the plant was contributing less than 10,000 gallons of wastewater per day to the POTW prior to May 1985, the plant was subject to limitations for certain contaminants that were higher than those identified by plaintiffs. Therefore, many of the alleged violations in this period did not occur. Also, according to Von Linden, since 1985, other reported violations were the result of equipment malfunction and inadequate POTW and Harvard sampling procedures. Von Linden notes that since Harvard purchased the plant there have been few violations of the chromium, copper, nickel, lead, zinc and silver standards and there were many "good" test results for pH, cadmium, total cyanide and amenable cyanide. Finally, Von Linden notes that according to the Joint Meeting POTW's records, since 1981 no heavy metals or cyanide in amounts approaching ESNA's limits have either entered or been discharged from the Joint Meeting POTW, and the POTW has stated that it has never been in violation of its permit.

Discussion

I. Motions to Dismiss

A complaint cannot be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All that is required is notice pleading, which gives the defendant "fair notice of what plaintiff's claim is and the grounds upon which it rests." Id. All facts pleaded by the plaintiff must be taken as true and all reasonable inferences must be drawn in favor of the plaintiff. Altemose Construction Co. v. Atlantic, 493 F. Supp. 1181, 1183 (D.N.J. 1980) (citing McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3d Cir. 1978)). To withstand a Rule 12(b)(6) motion to dismiss, "[i]t is not necessary to plead evidence, nor is it necessary to plead facts upon which the claim is based." Bogosian v. Gulf Oil Co., 561 F.2d 434, 446 (3d Cir. 1977). The defendant has the burden of demonstrating that some portion of the complaint should be dismissed. Johnsrud v. Carter, 620 F.2d 29, 33 [10 ELR 20285] (3d Cir. 1980).

A. Amerace

Amerace argues that as there is no dispute that Harvard purchased the ESNA Plant on April 12, 1985, or thirteen months before plaintiffs filed their initial complaint, under the Supreme Court's decision in Gwaltney, 98 L. Ed. 2d 306 (1987), the court lacks subject matter jurisdiction as to the action against Amerace, and the complaint fails to state a claim against Amerace upon which relief can be granted. I conclude that Amerace's position is correct.

Section 505(a)(1) of the Clean Water Act provides that any citizen may bring a citizen suit "against any person . . . who is alleged to be in violation of (A) any effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. sec. 1365(a)(1). Under Gwaltney, however, this action does not confer federal jurisdiction over citizen suits for "wholly past violations." 98 L. Ed. 2d at 321. Jurisdiction attaches only if plaintiff makes [20 ELR 20396] a good faith allegation of continuous or intermittent violations. Id. In order to prevail, plaintiff must prove this allegation.

As a matter of law, plaintiff cannot demonstrate that Amerace was in violation of any provision of the Act when this action was initiated. Thirteen months prior to that time, Amerace had ceased being the plant's owner or operator, and thus could not have been in violation of any affluent standard or limitation. Although the plant may have been in continuous violation of the Clean Water Act during the period it was owned by both Amerace and Harvard, Amerace was no longer in violation of the Act when plaintiffs commenced this action.

This conclusion is consistent with Gwaltney. In Gwaltney, the Court held that "the interest of the citizen-plaintiff is primarily forward-looking. . . . [T]he harm sought to be addressed by the citizen suit lies in the present or the future, not in the past." Id. at 318. In accordance, the Court found that the "citizen suit provision suggests a connection between injunctive relief and civil penalties that is noticeably absent from provisions authorizing agency enforcement." Id. Also, the purpose of section 505's notice provision requiring citizens to give alleged violators 60 days notice of their intent to sue, "is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit." Id. at 319.

Thus, since including Amerace in this citizen suit can have no prospective effect (even if the plant has in fact been in continuous violation of the Act), it follows that Amerace — as a past owner and operator and wholly past violator — is not a proper defendant.² For example, since Amerace no longer owns or operates the plant, there is no possibility of injunctive relief against it. Also, giving Amerace 60 days notice before commencing this action was superfluous because by that time Amerace was unable to initiate any additional measures to bring the plant into compliance.

Furthermore, in Gwaltney, the Court noted that principles of mootness protect defendants "from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing." Id. at 323. The mootness doctrine is applicable if defendant can "demonstrate that it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968) (emphasis added)." Id. Here, Amerace is covered by the mootness doctrine since it no longer controls the ESNA plant, and therefore, it could not reasonably be expected to repeat its past violations of the Act.

B. Harvard

Just as Gwaltney forecloses plaintiffs' citizen suit against Amerace for its wholly past violations, as a matter of law, Harvard cannot be held liable for those same violations. Given Gwaltney, it would be anomalous to hold Harvard liable for Amerace's violations when Amerace itself could not be held liable for such violations. Moreover, plaintiff's argument that Harvard is liable for Amerace's alleged violations of the Act pursuant to principles of successor liability is flawed. Thus, Harvard's motion to dismiss the second amended complaint to the extent that it alleges that Harvard is liable for violations of the Clean Water Act prior to April 12, 1985 must be granted.

Plaintiffs argue that in the absence of any reference to successor liability in either the Act or the legislative history, the contractual agreement between Amerace and Harvard assigning liability to Harvard for Amerace's debts and obligations due or unperformed at the time Harvard purchased the plant should not be disturbed. Plaintiff's Brief in Opposition to Motions to Dismiss and In Support of Partial Summary Judgment ("Plaintiffs' Brief") at 18. According to plaintiffs, Amerace's Clean Water Act violations were such liabilities. However, this is incorrect. As demonstrated above, Amerace's liability for violations of the Clean Water Act under the Act's citizen suit provision was extinguished when its ownership and control of the plant were transferred to Harvard. Thus, Harvard did not acquire Amerace's citizen suit liabilities under the Clean Water Act because no such liabilities existed upon its purchase of the ESNA plant.

In support of their argument that Harvard contractually assumed Amerace's liability for civil penalties resulting from a citizen suit under the Act, plaintiffs wrongly rely on Philadelphia Electric Company v. Hercules, Inc., 762 F.2d 303 [15 ELR 20554] (3d Cir. 1985), cert. denied, 474 U.S. 980 (1985). In Hercules the court, sitting in diversity, held that under Pennsylvania law a successor corporation can be held responsible for a predecessor's liability in connection with environmental contamination where

(1) the purchaser of assets expressly or impliedly agrees to assume obligations of the transferor; (2) the transaction amounts to a consolidation or de facto merger; (3) the purchasing corporation is merely a continuation of the transferor corporation; or (4) the transaction is fraudulently entered into to escape liability.

Id. at 308.

Plaintiffs only argue that Harvard is liable for Amerace's violations of the Clean Water Act because Harvard contractually agreed to assume Amerace's liability. However, even assuming that such liability existed after Harvard purchased the plant, plaintiffs point to no evidence in theClean Water Act or its legislative history demonstrating that Congress intended such liability to be assumable.

Instead, any civil penalties assessed against persons in violation of the Act are not transferable because such penalties are penal. See, e.g., Schreiber v. Sharpless, 110 U.S. 76, 80 (1884) ("actions on penal statutes do not survive" a person's death) (still the law); Murphy v. Household Finance Corp., 560 F.2d 206, 209 (6th Cir. 1977); United States v. Edwards, 667 F. Supp. 1204, 1211-1215 (W.D. Tenn. 1987); Porto v. Household Finance Corp., 385 F. Supp. 336 (S.D. Ohio 1074). In Huntington v. Attrill, 146 U.S. 657, 661 (1982), the Court noted that "[t]he test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be readdressed is a wrong to the public or a wrong to the individual." In Murphy, the Sixth Circuit articulated a three-factor test to determine whether actions are penal for the purpose of determining survivability:

(1) whether the purpose of the statute was to address individual wrongs or more general wrongs to the public; (2) whether recovery under the statute runs to the harmed individual or to the public; and (3) whether the recovery authorized by the statute is wholly disproportionate to the harm suffered.

560 F.2d at 209. This test is appropriate to determine whether Clean Water Act citizen suit civil penalties are assumable.

Applying the Murphy test demonstrates that Clean Water Act citizen suit penalties are not assumable. I agree with the conclusion reached in Edwards that the civil penalty provisions of the Clean Water Act are penal: the wrong involved is to the public, and civil penalties are paid to the government.³ 667 F. Supp. at 1213-14. Consequently, even assuming that under the Harvard-Amerace purchase agreement's terms Harvard is liable for Amerace's Clean Water Act violations, as a matter of law, this contractual assignment of liability is void.

In United States v. Metropolitan District Commission, 23 ERC 1350 [16 ELR 20621] (D. Mass. 1985), the court held the Massachusetts Water Resources Authority liable for pollution discharge permit violations committed by its predecessor. However, Metropolitan is easily distinguishable from the instant action. In Metropolitan, the general federal rules on successor liability attached because the Massachusetts Water Resources Authority "was a mere continuation or reincarnation of the old corporation." Id. at 1362 (quoting Cry v. B. Offen & Co., 501 F.2d 1145, 1152 (1st Cir. 1974) ("if as a group the same employees continue, without pause to produce the same products in the same plant, with the same supervision, the ownership of the entity which maintains essentially the same name cannot be the sole controlling determinant of liability," id. at 1154)). In the action here, plaintiffs have not alleged that Harvard is merely a continuation of Amerace; nor have plaintiffs alleged [20 ELR 20397] that Harvard's purchase of Amerace's assets amounts to a consolidation or de facto merger, or was part of a fraudulent scheme to escape liability.

Finally, plaintiffs advance imposing successor liability because it would jeopardize no Clean Water Act policies, but would further the Act's deterrence purpose. Plaintiffs' Brief at 26. Plaintiffs argue that applying successor liability would encourage the identification and abatement of ongoing violations when assets are transferred. However, they ignore the fact that in Gwaltney the Supreme Court de-emphasized the Act's deterrence purpose — i.e., the Court prohibited Clean Water Act citizen suits for wholly past violations.⁴ Also, had Congress wanted to impose successor liability, it would have clearly stated this intent as it did in the Comprehensive Environmental Response Compensation and Liability Act. 42 U.S.C. secs. 9607(a) and 9613(f)(1); see Smithland & Importation Corp. v. Celotex, 851 F.2d 86, 89 (3d Cir. 1988). For this court to accomodate plaintiffs and impose a per se rule of successor liability would involve usurping the legislative function.

II. Rule 11 Sanctions

The Third Circuit narrowly interprets Rule 11. 28 U.S.C. 11. In Gariado v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir. 1988), the court emphasized that Rule 11 targets "abuse" and was not intended to chill creative legal thinking. "The Rule must not be used as an automatic penalty against an attorney or a party advocating the losing side of a dispute." Id. at 482. Recognizing that the Rule is "being used as an instrument of harassment" and that it "has become part of the so-called 'hardball' litigation techniques," the court warned attorneys not to distort the Rule. Id. at 484, 485. Rather, it should be invoked only in "exceptional circumstances" where there is strong evidence of bad faith, negligence and professional incompetence. Id. Thus, in Gaiardo, the court specifically refused to impose Rule 11 sanctions on a litigant who was challenging Pennsylvania's at-will employment policy, even though it was well settled that Pennsylvania did not acknowledge the public policy exception to at-will employment. Imposing Rule 11 sanctions is discretionary. Doering v. Union County Board of Chosen Freeholders, 857 F.2d 191 (3d Cir. 1988).

Amerace asks this court to impose Rule 11 sanctions on plaintiffs. This cannot be done given the stringent requirements the Third Circuit has set for imposing such penalties. Given Amerace's continuous violations of the Clean Water Act while it owned and operated the plant and the fact that these same violations continued after it sold the plant, plaintiff did not act unreasonably, frivolously or in a harassing manner by suing Amerace as well as Harvard. Although I reject plaintiffs' predecessor liability theory, it was not brought frivolously even in light of Gwaltney. Moreover, even if there is some credence to Harvard's allegations that the Union's underlying intention is to force Harvard to engage in collective bargaining, there is no evidence that this is plaintiffs' only intention. Plaintiffs include four individual persons who claim to be adversely affected by the violations, the New Jersey State Industrial Union Council, an unincorporated association of over fifty industrial unions that works toward improving occupational safety and community health, and the New Jersey Environmental Federation, a chapter of the Clean Water Project with 7,000 to 8,000 members. The latter is a non-profit organization which engages in lobbying and other activities directed at enforcing water pollution laws and reducing human exposure to toxic and potentially hazardous substance.

Conclusion

For the foregoing reasons, I grant Amerace's and Harvard's motions to dismiss. As I find that Harvard is not liable for violations occuring prior to April 12, 1989, I deny plaintiffs' motion for partial summary judgment. Also, I deny Amerace's motion for Rule 11 sanctions.

Harvard shall submit an appropriate form of order.

* The court designated this decision as not for publication.

1. Plaintiffs are the International Union of United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO and its New Jersey affiliate, Local 726 (collectively, the "Union"), the New Jersey Environmental Federation, a non-profit environmental lobbying group, the New Jersey State Industrial Union Council, an unincorporated association of over 50 industrial unions that seeks to further community safety and health, and four individual union members who claim to be adversely affected by the alleged water pollution violations.

2. I recognize that applying the citizen suit provision of the Act to past owners and operators responsible for continuous or intermittent violations which began when the plant was under their control would serve a general deterrence purpose. However, this would also be a reason for holding persons liable for wholly past violations. In Gwaltney the Court did not recognize such a general deterrence purpose in the citizens suit provision of the Clean Water Act, and such a purpose cannot be given effect here.

3. This court also agrees with Edwards determination that the third factor identified in Murphy (i.e., whether the civil penalty is disproportionate to the harm suffered) is not critical in the context of Clean Water Act cases. 667 F. Supp. at 1213-14.

4. While it is true that the combined effect of defendants motions is to insulate pre-transfer violations from liability under the Act's citizen suit provision, plaintiffs' position is, nonetheless, inconsistent with the Court's holding in Gwaltney.