WTIP learns more about ‘environmental group’ suing Bluefin over water issue

The Tofte Wastewater Treatment Association, which serves Bluefin Bay Resort on Lake Superior, is the focus of a class action lawsuit alleging the North Shore resort’s wastewater system violated its permit regarding discharge of treated wastewater into Lake Superior.

Filing the lawsuit is a Minnesota company calling itself ‘Clean Water and Air Legacy.’ It claims to be “an organization formed for the purpose of advocating for clean waterways and air and the preservation of natural resources by seeking to ensure enforcement of the country’s environmental laws.” Paperwork filings note the company is based in St. Michael, Minn.

WTIP attempted to contact a representative of Clean Water and Air Legacy for comment on the complaint. Repeated calls from WTIP to Tyler Olson, the person listed as “agent” and “manager” for Clean Water and Air Legacy, went unanswered.  The address listed for Clean Water and Air Legacy is 4777 Lansing Avenue NE in St. Michael. Wright County records show the address is in a residential neighborhood. Tyler and Tami Olson are listed as the homeowners of this address.

The organization has neither a website nor social media pages. In fact, it has no online presence other than a corporate filing. Their company name does show up in several recent and similar lawsuits where they claim harm was done to the environment, including legal action against the Bois Forte Band of Chippewa and Prairie Island Indian Community.

The lawsuit against Bluefin from Clean Water & Air Legacy filing lists Patrick Michenfelder as “organizer.” Michenfelder is the attorney representing Clean Water and Air Legacy, so if the court granted the request for a class action lawsuit, Michenfelder would be counsel for the class action group. Calls from WTIP to his law firm, Throndset Michenfelder, LLC, were also not returned.

Michenfelder was the subject of legal action himself in November 2020 when he was publicly reprimanded by the Minnesota Supreme Court. As the attorney behind 270 lawsuits under the Americans With Disabilities Act (ADA) on behalf of Midwest Disability Initiative, Michenfelder was the focus of Twin Cities-based FOX 9 about frivolous lawsuits.

In its class action lawsuit against Bluefin, Clean Water and Air Legacy allege that the Tofte Wastewater Treatment Association violated a water permit over the course of more than 300 days since November 2018, discharging “mercury, fecal matter, coliform, and suspended solids” into Lake Superior.

WTIP spoke with MPCA spokesperson Stephen Mikkelson, who confirmed that the Tofte Wastewater Treatment Association had incidents during which the amount of pollutants exceeded the amount allowed under MPCA and federal Environmental Protection Agency (EPA) guidelines.

Mikkelson said from the MPCA’s perspective, these incidents were minor. He said, “What occurred was daily reports that the PCA received indicated some exceedances in some effluent discharges. They were minor in the scope of things. We have a lot of tools in our toolbox for enforcement, depending on what happened and how serious the nature of violations is. This to put in perspective is very low on our enforcement, tree or chart, meaning it’s a very minor, kind of a routine occurrence. That is not a big human health threat. It’s not an ongoing situation.”

He added, “And really not a major impact to the environment. I know people probably don’t want any impact to the environment, but what occurred here is pretty low level in our enforcement world.”

The Tofte Wastewater Treatment Association began operations in 1998 and Mikkelson said the facility has not had any “major or significant violations” over the years. He said the treatment plant received a “letter of warning” in 2014 and corrective action was taken.

The last MPCA site visit was in 2017. The MPCA relies on the Tofte wastewater staff for its reports. WTIP asked Mikkelson about the training needed to operate a wastewater treatment plant.

“The certifications or to get certified is pretty extensive training. And then any operator undergoes very regular retraining and refresher courses, to renew their certification. And other trainings are made available to them on annual basis, so they’re constantly having further education and being recertified on a regular basis,” said Mikkelson.

However, Mikkelson said a full record review was completed in November 2021, and because there were a number of incidents in which the Tofte plant did exceed allowable levels, the MPCA directed the Tofte Wastewater Treatment Association to enter a compliance agreement with the MPCA. WTIP obtained the compliance agreement which includes a table that lists 12 dates on which the Tofte plant exceeded “permitted effluent limits” between November 18, 2018 and August 1, 2021.

The compliance document gave the Tofte Wastewater Treatment Association 30 days to submit a standard operating procedure (SOP) to be implemented in the event of any future effluent limit violations. Mikkelson said the Tofte Wastewater Treatment Association submitted that SOP and he provided a copy to WTIP. The SOP describes daily, weekly and monthly tasks at the treatment plant, as well as actions to take to prevent unacceptable levels of wastewater from being released into Lake Superior.

No financial penalties were assessed at this time, but in the agreement, the MPCA reserves the right to exercise emergency powers and establish harsher penalties for violations of environmental laws or rules that constitute repeat violations.

Mikkelson told WTIP, “This Bluefin Bay facility has been operating for a long time, and they have not had any major violations that would have caused any kind of public health concern. If that were to happen, appropriate steps would be taken. They would be held accountable to correct any actions. And if there were a public health threat at any time, the PCA would partner with agencies like the Department of Health, and inform citizens in the area, what the situation is, and when things would be cleaned up and safe.

“But as it stands, you know, Bluefin Bay, is in good standing, and they’re operating according to their permit and have been very good actors in, in the community and for the environment up there,” said Mikkelson.

Although the MPCA is satisfied that the Tofte Wastewater Treatment Association and Bluefin Bay Resort have completed the necessary corrective actions, Clean Water & Air Legacy is pursuing its class action lawsuit under the federal Clean Water Act.

According to the complaint, the filing represents a class action membership that includes “at least one individual who resides in the state of Minnesota and has, for many years, visited and enjoyed the quietude and natural beauty of the North Shore, including visits to Tofte Town Park.” The complaint states that the violations of effluent discharge limits “lessen the aesthetic and recreational values of the North Shore in and near Tofte and diminish this person’s enjoyment of the North Shore in and near Tofte, Minnesota.”

The Clean Water and Air Legacy filing asks the court to declare that the defendant (Tofte Wastewater Treatment Association) violated the Clean Water Act and to order the defendant to comply with its NPDES permit and refrain from further violations. The filing asks the court to assess an appropriate civil penalty against the defendant and to award the plaintiffs (Clean Water and Air Legacy) its costs of litigation.

WTIP also reached out to Bluefin Bay Resort Owner Joe Swanson, who declined to comment on the lawsuit, but said, “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.”

The first website to post on the situation is a group known as Law Street Media. Nearly all of their posts are about lawsuits, legal action and settlements. WTIP contacted officials with Law Street Media to learn more about their approach to journalism and did not hear back. Another website, Boreal.org, which is based in Grand Marais, posted the article verbatim without providing context or background about Clean Water and Air Legacy, referencing them as an “environmental group” in the headline.

WTIP’s Joe Friedrichs contributed to this report.

Rhonda Silence February 17, 2022