February 23, 2024

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Cities, businesses are targets of maverick Minnesota lawyers looking for wastewater polluters

Cities, businesses are targets of maverick Minnesota lawyers looking for wastewater polluters

A lawyer who was admonished by the Minnesota Supreme Court in 2020 after targeting hundreds of businesses for allegedly failing to comply with the Americans with Disabilities Act now has a new crusade: water pollution.

This time Patrick Michenfelder is suing, or threatening to sue, Midwestern cities and businesses — many of them in Minnesota — in federal court for violating the Clean Water Act, when the discharge pumped from their wastewater treatment plants exceeds pollutant limits.

The small city of Lanesboro, whose new wastewater treatment plant came on line this fall, paid $52,000 last year rather than spend more contesting a suit filed against it by the St. Michael law firm of Throndset Michenfelder. That’s money that could have been spent fixing sewer lines and roads, said Lanesboro City Administrator Michele Peterson.

“It’s frustrating,” Peterson said. “We’re a small community and infrastructure is huge, and there’s not a lot funding for it.”

Lanesboro was targeted in a string of Clean Water Act citizen enforcement actions underway by Throndset Michenfelder, a campaign that is steadily gaining the attention of lawmakers.

The St. Michael law firm has been taking permit holders to task for documented violations of their federal National Pollutant Discharge Elimination System permits, which allow them to pump treated wastewater back into the environment. According to the firm, each day that discharged water exceeds the limit on a pollutant counts as a violation under the law, and courts take that into consideration when fixing penalties.

The question: Is Throndset Michenfelder just doing environmental ambulance chasing, or undertaking valuable private citizen enforcement actions sanctioned under a bedrock federal law?

Either way, frustrated officials in at least two Minnesota cities — Hinckley as well as Lanesboro — have settled suits to avoid a costly court battle.

In interviews and email exchanges, the Minnesota Pollution Control Agency (MPCA), which enforces the Clean Water Act, characterized most of the violations at issue as “fairly low level.” A Hinckley city official told the Star Tribune it didn’t “really do anything wrong,” and one state lawmaker called the law firm’s campaign a scam.

A lawsuit against the third permit holder sued so far — a plant treating wastewater from the Bluefin Bay resort on Lake Superior in Tofte — remains open.

At least 10 other permit holders have received 60-day notice letters from Throndset Michenfelder over the past two to three years, according to the MPCA. Defendants are a mixed bag, with big companies such as U.S. Steel Corp.’s Keetac taconite operation, as well as the Grand Portage Band of Lake Superior Chippewa and the southern Minnesota farm town of Alden.

Lanesboro, a picturesque arts town of 720 on the Root River in southeastern Minnesota, was starting to build a new wastewater treatment plant in 2021 when it received its 60-day notice letter from Throndset Michenfelder. It was replacing an antiquated plant — the oldest in Minnesota — that it had struggled with for years, Peterson said.

Treated wastewater that Lanesboro pumps to the Root River had failed federal limits for two pollutants about a dozen times since 2019 and was out of compliance with federal water pollution laws for 250 days. Peterson characterized the violations as minor and said the city had been working with the state to fix the problems with suspended solids and oxygen levels in the treated water.

Throndset Michenfelder accused the Tofte Wastewater Treatment Association — known as the Bluefin Bay on Lake Superior Wastewater Treatment Plant — of polluting the Great Lakes by discharging wastewater “with repeated substantial and unlawful amounts of mercury, fecal matter, coliform and suspended solids.”

The suit lists a dozen exceedances since 2018, with violations over 312 days. One reading of the treated wastewater, for example, showed 3.8 nanograms of mercury per liter, above a limit of 2.9 nanograms.

Minneapolis federal court dealt Bluefin Bay a blow on Jan. 4 when it allowed the lawsuit against it to move forward, even though the MPCA testified that the plant had corrected its problems and was back in compliance before the suit was filed, court documents show. Bluefin Bay and its lawyers declined requests for comment.

Citizen lawsuits

Throndset Michenfelder’s litigation highlights the fact that only a fraction of federal water pollution violations get scrutiny. Minnesota companies, wastewater treatment plants and other permitted facilities have exceeded pollutant levels and violated federal water laws more than 9,000 times since the start of 2019, MPCA records show.

In a statement, the MPCA said only a fraction were significant in terms of environmental impact. With limited resources to pursue the sort of infractions Throndset Michenfelder is targeting, it prioritizes the most significant ones or those that draw a complaint. The agency said it has a 98{e538325c9cf657983df5f7d849dafd1e35f75768f2b9bd53b354eb0ae408bb3c} compliance rate for effluent limits at regulated facilities.

As for the Lanesboro, Hinckley and Tofte lawsuits, the MPCA said those violations ranged from “minor to moderate.” The regulator did routine compliance reviews for those facilities in the fall of 2021 and addressed all the violations. None resulted in penalties.

“The MPCA is confident in the current regulatory process to protect the environment and communities around Minnesota,” according to the agency’s statement.

The citizen lawsuits filed by Throndset Michenfelder are perfectly legal. The landmark Clean Water Act, like the Clean Air Act, allows private citizens to sue to force compliance and stop pollution. The provision requires a 60-day notice before litigation for disputes to be resolved.

Seen as a supplement to government regulation, citizen suits are a valuable tool that environmentalists want to protect. Though common elsewhere, Clean Water Act citizen suits haven’t been used much in Minnesota.

Until now. Michenfelder sees himself as a citizen environmental watchdog trying to get polluters to comply with water pollution laws. In email exchanges, he said he’s pursuing “serial ongoing violators” and plans to pursue Clean Air Act violations too.

Michenfelder said it’s troubling that municipalities that violate permits would complain about meeting pollution limits the government has set. “Violations of these governmental limits are all important and are not minor in any sense of the word,” he said.

Some of the targeted cities and their supporters would disagree. Rep. Greg Davids, R-Preston, is angry and said the lawsuits burden already strapped small cities. He met recently with the League of Minnesota Cities and the MPCA to brainstorm solutions.

“Man, you talk about a scam,” Davids said. “I want to stop this as soon as I can.”

Court reprimand

It’s not the first time Throndset Michenfelder has methodically pursued noncompliance.

Since 2016, the law firm has initiated more than 300 lawsuits on behalf of various clients against Minnesota businesses for alleged noncompliance with the Americans with Disabilities Act. Listed infractions included ill-equipped bathrooms and overly steep curb ramps. At one point furious owners of St. Paul businesses, including landmarks such as Mickey’s Dining Car and Candyland, accused Michenfelder of legal extortion.

In 2020, the state agency that polices the conduct of Minnesota lawyers, the Office of Lawyers Professional Responsibility, petitioned the state Supreme Court for disciplinary action against Michenfelder on how settlement proceeds totaling $411,500 were handled in the cases from 2016 to 2018. The high court publicly reprimanded Michenfelder and fined him $900.

In email exchanges, Michenfelder said he had no involvement with the deposits, which were made to his firm’s operational account instead of its trust account, and that there were no allegations that client funds were misappropriated.

In its campaign against polluters, the firm is acting on behalf of Clean Water and Air Legacy, a limited liability company that Michenfelder helped establish in 2019. State records show Michenfelder as the organizer and St. Michael resident Tyler Olson as manager, with a business address at Olson’s home.

In emails, Olson described himself as a lifelong outdoorsman, angler and hunter who is passionate about environmental protection.

“I have had a number of people close to me die at young ages and I believe pollution caused or contributed to some of those deaths,” he said.

Michenfelder described the company as one formed by citizens concerned with getting compliance with environmental laws and preserving natural resources.

That’s not how it looks from Hinckley City Hall, according to City Administrator Kyle Morell. Hinckley spent about $72,000 last year to settle its suit. “My gut feeling is that it’s the ADA lawsuits all over again,” he said.

Hinckley’s wastewater facility, which pumps effluent into the Grindstone River, exceeded limits on phosphorous, nitrogen and dissolved oxygen five times since 2019 and was out of compliance for 154 days, according to the suit. One reading, for example, showed nitrogen levels at 5.2 milligrams per liter, above a limit of 3 milligrams.

About 20{e538325c9cf657983df5f7d849dafd1e35f75768f2b9bd53b354eb0ae408bb3c} of the settlement, or $15,000, went to Throndset Michenfelder. The rest went to outside lawyers and improvements to its plant. It remains a sore spot, Morell said.

“It’s something we still feel is not exactly fair,” he said.