ELR Citation: ELR 20604
No(s). s. 96-3654 et al (8th Cir. Mar 5, 1998)

The court holds that a state environmental agency's enforcement actions preclude a citizen group's claims for injunctive relief and civil penalties against a construction company that violated its national pollutant discharge elimination system (NPDES) permit. The court first holds that the group's claim for injunctive relief became moot when the construction company's NPDES permit terminated and when the state environmental agency approved a stipulation agreement between the agency and the company. In the agreement, which required the company to pay civil penalties for past NPDES permit violations, the agency determined that the company was not likely to engage in further NPDES permit violations. The court determined that under the applicable mootness standard, the claim for injunctive relief is moot unless the group proves there is a realistic prospect that the violations alleged in its complaint will continue notwithstanding the permit termination and the stipulation agreement. However, the group has no evidence to contradict the findings set forth in the stipulation agreement. The court rejects the group's argument that the company wrongfully procured the permit's termination by misstating that the construction site was properly stabilized, because there is no record to support this contention. Moreover, the state agency obviously concluded that proper stabilization had been achieved. The group also argued that the permit termination did not moot their claim because the company constructed three settling ponds that discharge pollutants into a nearby lake without an NPDES permit and because the company is likely to violate its NPDES permits at other construction sites. However, the court rejects these arguments because a citizen suit is limited to violations that are closely related to and of the same type as the violations specified in the citizens' notice ofintent to sue.

The court next holds that the group's claim for civil penalties was precluded by the state agency's enforcement actions. Although the group satisfied the ongoing violation test when its complaint was filed, the court concludes that an administrative enforcement agreement between an environmental agency and a polluter will preclude a citizen suit claim for civil penalties if the agreement is the result of a diligently prosecuted enforcement process, however informal. Here, the state agency diligently prosecuted its enforcement demands. Therefore, the civil penalties it elected to extract in settling those demands may not be reconsidered in the group's citizen suit. Last, the court holds that the lower court did not abuse its discretion by denying the group's request for attorney fees and costs. The lower court's finding that the group was not a catalyst for the state agency's enforcement action was not clearly erroneous.

Counsel for Plaintiff
Richard B. Bates
Sonat Marketing Company
18404 Anne Dr., Houston TX 77058
(713) 333-2231

Counsel for Defendants
Erik T. Salveson
Gray, Plant, Mooty, Mooty & Bennett
3400 City Center
33 S. 6th St., Minneapolis MN 55402
(612) 343-2800

Before McMillian and Hansen, JJ.