ELR Citation: ELR 20394
No(s). 86-1833 (D.N.J. Oct 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