Comfort Lake Association, Inc. (“Comfort Lake”), filed this citizen suit seeking injunc-tive relief, civil penalties, and costs and attorney’s fees against Dresel Contracting, Inc., and Fain Companies (“Dresel and Fain”) for alleged violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, commonly known as the Clean Water Act. The district court 1 initially denied Dresel and Fain’s motion for summary judgment, rejecting their contention that the Minnesota Pollution Control Agency (“MPCA”) had commenced and was diligently prosecuting an administrative enforcement action that barred this citizen suit. See 33- U.S.C. § 1319(g)(6)(A)(ii). However, the court 2 later dismissed the action as mooted by MPCA’s subsequent enforcement actions and denied Comfort Lake an award of costs and attorney’s fees. Comfort Lake appeals; Dresel and Fain cross appeal the initial ruling. We conclude the claim for injunctive relief is moot, the claim for civil penalties is precluded by MPCA’s enforcement action, and the district court did not abuse its discretion in denying attorney’s fees. Accordingly, we affirm.
I. Background.
The timing of the various activities underlying this dispute is significant. In the Fall of 1994, MPCA issued Dresel and Fain a National Pollution Discharge Elimination System (“NPDES”) permit for construction of a Wal-Mart store in Forest' Lake, Minnesota. The permit required erosion and sediment control facilities because run-off of pollutants from the construction site threatened the water quality of nearby Comfort Lake and its tributaries. After investigating complaints, MPCA sent Dresel and Fain a warning lettеr on December 20, 1994, noting permit violations. Dresel and Fain responded in early January 1995, claiming to have properly addressed these problems.
On January 31, Comfort Lake, a non-profit association, dedicated to protecting the lake
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and its tributaries, issued a notice of intent to sue Dresel and Fain over the same NPDES permit viplations noted in MPCA’s Deсember 20 letter. Under the Clean Water Act, plaintiff must give such a notice of intent to sue to the Administrator, of the Environmental Protection Agency, the affected state agency, and the alleged violator at least sixty days before commencing a citizen suit.
See
33 U.S.C. § 1365(b);
Hallstrom v. Tillamook County,
Meanwhile, on February 13, MPCA again inspected the construction site, found continuing violations, and ■ issued a Notice of Violation to Dresel and Fain. They responded that the violations were remedied, but after another inspection,. MPCA issued a follow-up letter citing specific permit violations and demanding, within ten days, “a detailed schedule for correcting these deficiencies.” MPCA issued a second Notice of Violation on May 10, advising Dresel and Fain that the MPCA Board, would consider issuing an administrative cease and desist order at its May 23 meeting. On May 19, Dresel and Fain reported full compliance with the permit. MPCA promptly inspected, and a May 22 internal agency memorandum states that the violations had indeed been corrected. ‘
Dresel and Fain completed store construction in November 1995 and applied for termination of the NPDES permit. MPCA terminated the permit on April 11, 1996. MPCA staff negotiated and then proposed to the agency Board a Stipulation Agreement requiring payment of $12,203 in civil penalties for all past violations of the permit, including $6,100 payable to the City of Forest Lake for “a diagnostic study of Comfort Lakе.” On May 21, 1996, MPCA issued its thirty-four page Findings of Fact, Conclusions of Law and Order approving the Stipulation Agreement over Comfort Lake’s opposition. The Stipulation Agreement recites that it
covers all alleged NPDES/SDS Permit violations that occurred at the Wal-Mart construction site and that were known by MPCA as of the effective date of this Agreement. The alleged violations are considered past violations that have been satisfactorily resolved or corrected. This
Agreement contains no remedial or corrective action requirements because construction at the Wal-Mart site has been completed. The NPDES/SDS Permit has been terminated; thus, there is no likelihood that NPDES/SDS Permit violations will recur at thе Wal-Mart site.
Dresel and Fain then renewed their motion for summary.judgment. The district court granted that motion, and in a separate order denied Comfort Lake an award of costs and. attorney’s fees. These appeals followed. Broadly stated, the issues are whether MPCA’s enforcement actions preclude Comfort Lake’s claims for injunctive relief аnd civil penalties, and whether the district court abused its discretion in denying an award of costs and attorney’s fees.
II. Is the Claim for Injunctive Relief IVIoot?
The doctrine that federal courts may not decide moot cases “derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controvеrsy.”
Liner v. Jafco, Inc.,
A claim for injunctive relief may become moot if challenged conduct permanently ceases. When the alleged violation underlying a Clean Water Act citizen suit ceases while the suit is pending, “[Ijongstand-ing principles of mootness ... prevent the maintenance of suit when there is no reasonable expectation that the wrong will be repeated.”
Gwaltney of Smithfield v. Chesapeake Bay Found., Inc.,
At the outset, we address the applicable mootness standard. Comfort Lake argues that Dresel and Fain must prove it is
“absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.” But that is the test when a defendant claims that its voluntary action has mooted a contrоversy.
See United States v. Concentrated Phosphate Export Ass’n,
Turning to the merits of this issue, Comfort Lake argues there are material fact questions whether store construction is complete and the NPDES permit terminated. However, Comfort Lake has no evidence to contradict the Stipulation Agreement recitals to this effect. Therefore, it has not met its burden to rebut the factual underpinnings of a well-suppоrted motion for summary judgment.
See Anderson v. Liberty Lobby, Inc.,
Finally, Comfort Lake argues that permit termination did not moot its claim for injunctive relief because Dresel and Fain constructed three settling ponds that are discharging pollutants into Comfort Lake and its tributaries without an NPDES permit, and because Dresel and Fain are likely to violate their umbrella NPDES permit at other construction sites. The answer to this contention is that these issues are not proper subjects of the lawsuit because Comfort Lake’s notice of intent to sue referenced only the alleged permit violations discussed in MPCA’s December 20, 1994, warning letter, violations relating to the Wal-Mart store construction. A citizen suit is limited to violations that are closely related to and .of the same type as the violations specified in the notice of intent to sue.
See Public Interest Research Group of N.J., Inc. v. Hercules, Inc.,
III. Is the Claim for Civil Penalties Precluded?
Comfort Lake’s complaint asked the court to impose civil penalties of $25,000 per day for each Clean Water Act violation. Contending that Dresel and Fain’s payment of $12,203 in civil penaltiеs under the MPCA Stipulation Agreement is an insufficient sanction for their permit violations, Comfort-Lake argues that its claim for civil penalties should be allowed to proceed even if its claim for injunctive relief is moot. When a claim for injunctive relief becomes moot, a related claim for money relief is not mooted “as long as the parties have a concrete interest, however small, in the outcome of the litigation.”
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Ellis v. Brotherhood of Ry., Airline & S.S. Clerks,
A Clean Water Act citizen suit, including any claim for civil penalties, must be based upon on-going violations, “that is, a reasonable likelihood that a past polluter will continue to pollute in the future.”
Gwaltney,
However, this is not a-case of voluntary compliance mooting the citizen suit’s claim for injunctive relief. Here, the on-going violations alleged in Comfort Lake’s complaint are moot because of subsequent MPCA enforcement actions that terminated the NPDES permit and assessed Dresel and Fain civil penalties for past violations. The Second Circuit addressed a similar situation in two eases. In
Eastman Kodak,
the state agency extracted $2,000,000 in criminal fines and civil penalties from the polluter. The Second Circuit held that the citizen suit “may not revisit the terms of a settlement reached by competent state authorities” absent proof of a realistic prospect that the alleged violations “will continue notwithstanding the settlement.”
These Second Circuit eases confirm that the problem here is not mootness. Because Comfort Lake satisfied Gwaltney’s ongoing violation test when its complaint was filed, there remains an actual controversy over its claim for сivil penalties for these violations. Rather, the issue is what effect Dresel and Fain’s settlement with MPCA has on that claim for civil penalties. Or, to state the question differently, may Comfort Lake collaterally attack MPCA’s decision that civil penalties of $12,203 are appropriate for the very same violations alleged in the citizen suit. Neither Eastman Kodak nor Pan American Tanning provides a standard for answering that question. Therefore, we return for guidanсe to the basic structure of the Clean Water Act.
An underlying principle of the Clean Water Act is that “the citizen suit is meant to supplement rather than to supplant” government enforcement action.-
Gwaltney,
In addition to court enforcement actions, EPA and many state agencies have statutory authority to proceed by formal ad *357 ministrative action. When EPA “has commenced and is diligently prosecuting” such an administrative action under 33 U.S.C. § 1319(g), or when MPCA has commenced and is diligently prosecuting “an action under a State law comparable to this subsection,” a subsequent citizen suit for civil penalties is barred. 33 U.S.C. § 1319(g)(6). In its initial ruling, the district court held that MPCA’s December 1994 non-compliance letter and its February 1995 Notice of Violation did not “commence” an administrative enforcement action, and therefore Comfort Lake’s citizen suit was not wholly barred by § 1319(g)(6) (a cross appeal issue we decline to consider). The Stipulation Agreement between MPCA and Dresel and Fain is not a res judicata or collateral estoppel bаr, like the judicially approved consent decree in Green Forest. But as a final agency enforcement action, that Agreement is entitled to considerable deference if we are to achieve the Clean Water Act’s stated goal of preserving “the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” -33 U.S.C. § 1251(b). Moreover, respondents like Dresel and Fain will be disinclined to resolve disputes by such relatively informal agreements if additional civil penalties may then be imposed in pending citizen suits, thereby depriving MPCA of this resource-conserving enforcement tool. 4 For these reasons, we conclude that an administrative enforcement agreement between EPA or MPCA and the polluter will preclude a pending citizen suit claim for civil penalties if the agreement is the result of a diligently prosecuted enforcement process, however informal.
In this case, MPCA began informal action to enforce the NPDES permit in December 1994, before Comfort Lake issued its notice of intent to sue for the same violations. The agency diligently pursued Dresel and Fain to end permit violations until May 1995, when it concluded compliance had been achieved. After construction was complete, MPCA terminated the permit and negotiated stipulated penalties for past violations. As the district court noted, MPCA extracted a civil penalty that “exceeds penalties imposed in similar cases [and] was derived by looking at factors substantially similar to those which must be considered by a court imposing penalties under” the Clean Water Act. Because MPCA diligently prosecuted its enforcement demands, the civil penalties it elected to extract in settling those demands may.not be reconsidered in this citizen suit. While Comfort Lake might have preferred more severe civil penalties, MPCA has the primary responsibility for enforcing the Clean Water Act.
IV. Should Attorney’s Fees Have Been Awarded?
Although Comfort Lake’s claims for affirmative relief are foreclosed by the subsequent MPCA enforcement actions, Comfort Lake may still be entitled to an award of costs and a reasonable attorney’s fee as a prevailing party under 33 U.S.C. § 1365(d) if its citizen suit was the catalyst for agency enforcement action that resulted in the cessation of Clean Water Act violations.
See Eastman Kodak,
The judgment of the district court is affirmed.
Notes
. The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota.
. The HONORABLE ANN D. MONTGOMERY, United States District Judge for the District of Minnesota.
. We deny Comfort Lake’s motion to supplement the record on appeal with additional documents relating to permit termination because these documents, if relevant, should have been placed in the district court record.
See Crawford v. Runyon,
. The Supreme Court in Gwaltney raised a similar concern in concluding that citizen suits may not challenge past violations:
Suppose that the [EPA] Administrator ... agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme correctivе action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forego, then the Administrator's discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities.