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Tofte Wastewater Treatment Association (TWTA) and Bluefin Bay on Lake Superior WWTP are defendants in a lawsuit alleging that TWTA has failed to comply with the Federal Clean Water Act by polluting Lake Superior for years with mercury, fecal matter, coliform bacteria and suspended solids.
The 17-page class action complaint was filed February 9, 2022, by Clean Water and Air, LLC.
The LLC is headed by Patrick W. Michenfelder, who is the only person listed. He was named as organizer and officer of the company; it incorporated February 7, 2018, in Owatonna, but is now listed in St. Louis Park, Minnesota. Michenfelder is a partner at Throndset Michenfelder Law Office, a firm in Saint Michael, Minnesota that is representing Clean Water and Air, LLC in the lawsuit against Bluefin.
The case was filed February 9, 2022, in US District Court for the District of Minnesota and is being heard by Chief Judge John R. Tunheim. Presiding judge, and Former Hibbing High School hockey goal tender and great two-miler Leo Brisbois who is the Magistrate in Environmental Matters.
In its citizen enforcement action of preliminary statement and facts, the complaint states, “According to the Environmental Protection Agency, Bluefin Bay violated its Clean Water Act permit on three-hundred and twelve days since November 30, 2018.”
The complaint also says Bluefin “has failed to comply with its Clean Water Act permit for seven out of 12 quarters and is currently in violation of its Clean Water Act Permit.”
Joe Swanson and Pipasu Soni are co-owners of the Bluefin Bay Family of Resorts. When asked about the pending litigation Joe Swanson replied, “TWTA (a non-profit with the sole mission of providing clean water and water treatment) agrees with the MPCA that the TWTA facility is in compliance and is not a public health risk. This includes the beloved Tofte park.
“We recognize that it’s a privilege and responsibility to take care of Lake Superior. We take this responsibility very seriously for all the people of Cook County, its visitors and Lake Superior lovers everywhere. We rely on, and happily comply with the MPCA monitoring system to ensure that we are being responsible stewards of this shared resource.”
Clean Water and Air, LLC (the Plaintiff) seeks relief including, but not necessarily limited to, “a declaration that Bluefin Bay has and continues to violate the terms of its Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit; an order requiring Bluefin Bay to comply with the Clean Water Act and its NPDDES permit; an order assessing the maximum penalties available under the law against Bluefin Bay for each day it has and continues to violate the terms of its NPDES permit; an award to Plaintiff of its costs of litigation including reasonable attorney’s and expert’s fees; damages pursuant to Plaintiff’s nuisance and negligence claims, punitive damages, and such other relief as the Court deems appropriate.”
On October 28, 2021, the Plaintiff provided a notice of intent to file suit under the Federal Clean Water Act to the Environmental Protection Agency (EPA) administrator, the Regional Administrator of EPA Region 5, the Minnesota Pollution Control Agency Commissioners, and GTWTA and Bluefin Bay. The Plaintiff gave a 60-day notice letter of intent to file suit unless the EPA designated Bluefin Bay as “Non-Compliant” because it alleged Bluefin Bay has for years been discharging wastewater which breaks the NPDES rule for pollutant levels.
Instead of finding Bluefin Bay “Non-Compliant” the MPCA reached a compliance agreement with Bluefin. However, because this agreement was reached without scrutiny by the plaintiff, nor did it address violations identified in the notice letter, Clean Water and Air, LCC elected to go forward with a lawsuit. In that lawsuit Bluefin is accused of four counts: public and private nuisance, negligence and violating the Clean Water Act. The complaint demands $75,000.
The suit alleges that Bluefin had unlawful discharges that included ongoing and repeated violations of mercury by as much as 94 percent of the permitted discharge, fecal matter by as much as 43 percent of the permitted discharge, coliform by as much as 43 percent of the permitted discharge, and suspended solids by as much as 111 percent of the allowable discharge.
The Minnesota Pollution Control Agency (MPCA) cited Bluefin Bay wastewater treatment plant for excellence in 2018.
When contacted about the litigation against Bluefin Stephen Mikkelson, Communications Specialist from the MPCA replied, “The Minnesota Pollution Control Agency signed a compliance agreement with Bluefin Bay on Lake Superior Wastewater Treatment Facility. The purpose of the agreement is to resolve effluent violations, reported to the MPCA via a routine procedure stipulated within the facility’s permit. The agreement also calls for the facility to submit a standard operating procedure document that will identify:
Actions and methods used to investigate the cause of any future effluent violation; Actions to be taken to prevent future reoccurrence; and Actions to be taken to reduce adverse impact resulting from the violation.
Mikkelson said the compliance permit was issued to Bluefin in 1998, and “the facility has completed its requirements.”
In his bio Michenfelder says he graduated from the University of Minnesota and then earned his J.D. from Lewis and Cark Law School in 1992, “a school he chose to attend because of its consistent rank as the nation’s best environmental law school.” Michenfelder’s area of practice includes business law and personal injury cases. In 2014 he was selected as a National Trial Lawyers Top 100 trial lawyer by the National Trial Lawyers.
In 2020 Michenfelder was the subject of a FOX 9 investigation which looked into what they termed frivolous lawsuits filed against the American With Disabilities Act (ADA) on behalf of the Midwest Disability Initiative (MDI).
Michenfelder initiated 270 ADA cases for MDI from 2016-2018, collecting $411,000 in settlements. The Minnesota Supreme Court said Michenfelder entered into contingency fee arrangements that were not signed by clients and did not detail percentages. He also deposited money from settlements into an operational account, rather than a trust account. The Minnesota Supreme Court publicly reprimanded Michenfelder and fined him $900. For his part, Michenfelder told FOX 9 “that there was finding of improper fee-Splitting, or that the cases lacked merit.”
Through Clean Water and Air LLC. Mitchenfelder filed a complaint against Prairie Island Indian Community on October 17, 2018. On October 23, 2018 a Motion of Stay was granted to the Prairie Island Indian Community.
The lawsuit against Bluefin says “at least one individual who resides in the state of Minnesota has, for many years, visited and enjoyed the quietude and natural beauty of the North Shore, including visits to Tofte Town Park. However, “Bluefin Bay’s repeated unlawful discharges of mercury, fecal matter, coliform, and suspended solids into Lake Superior lessens the aesthetic and recreational values of the North Shore in and near Tofte and diminishes this person’s enjoyment of the North Shore in and near Tofte, Minnesota.”
Further, the plaintiff seeks to represent a class of persons preliminarily defined as “All individuals who have visited Tofte Town Park from November 30, 2018, to August 31, 2021. Tofte Town Park was founded in 1922 and is immediately adjacent to Bluefin Bay and shares access to the same stretch of Lake Superior shoreline.”
The plaintiff is asking the Court to declare that Bluefin Bay has violated and continues to violate its permits and violates the Clean Water Act.
The plaintiff also asks the Court to order the defendant to comply with the Clean Water Act and to implement measures to remedy, mitigate, or offset the harm of the environment, and to assess “an appropriate civil penalty against the Defendant for each day of violation of the CWA, award the Plaintiff costs of the litigation, award Plaintiff and Class members nominal, compensatory, and punitive damages; and award such other relief as the Court deems appropriate.”
On March 2, Joe Swanson said the TWTA has a legal team on standby to defend against Michenfelder and Clean Water and Air, LLC.
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