Bluefin Bay WWTP Hit with Class Action Over Allegedly Ongoing Wastewater Pollution of Lake Superior

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A proposed class action alleges the Tofte Wastewater Treatment Association has for years polluted Lake Superior with mercury, fecal matter, coliform bacteria and suspended solids while continually failing to comply with the federal Clean Water Act. 

The 17-page lawsuit says that Tofte, who does business as Bluefin Bay on Lake Superior WWTP, has violated its Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit on 312 days since November 30, 2018 and failed to comply with the permit for seven out of 12 quarters.

The plaintiff, environmental advocacy group Clean Water and Air, LLC, seeks from the court a declaration that Bluefin Bay has and continues to violate the terms of its NPDES Clean Water Act permit, an order requiring the defendant to comply with the law and its permit, an order assessing the maximum penalties on Bluefin Bay for each day it continues to violate its permit, and other damages. 

Lake Superior is the largest and northernmost of North America’s Great Lakes and the world’s largest freshwater lake by surface area. The lake is home to salmon, trout and other freshwater fish and borders the natural habitat of wolves, bears, moose and other wildlife. Moreover, Lake Superior’s Minnesota shoreline, known as the North Shore, is “exceptionally scenic,” the suit says, and regularly enjoyed by tourists.

According to the lawsuit, Bluefin Bay’s NPDES permit places a strict limit on the amount of pollutants in the facility’s wastewater discharges into Lake Superior. Despite the permit limit, the defendant has, “for years, repeatedly and on an ongoing basis,” discharged amounts of wastewater into the lake that far exceed its permit limits for mercury, fecal matter, coliform and suspended solids, the suit claims: 

“Defendant’s unlawful discharges included ongoing and repeated violations of, among other things, mercury by as much as 94% of the permitted discharge, fecal matter by as much as 43% of the permitted discharge, coliform by as much as 43% of the permitted discharge and suspended solids by as much as 111% of the permitted discharge.”

According to the lawsuit, the plaintiff provided to the Administrator of the Environmental Protection Agency, Regional Administrator of EPA Region 5, Commissioner of the Minnesota Pollution Control Agency and Bluefin itself on October 28, 2021 notice of its intent to file a lawsuit under the Clean Water Act. The notice letter, the suit says, advised the defendant that EPA records designated its facility as non-compliant with the Clean Water Act, and showed that the facility had been out of compliance for five of the last 12 quarters.

The suit says that following receipt of the plaintiff’s October 28 notice letter, Bluefin entered into a “compliance agreement” with Minnesota’s Pollution Control Agency, an agreement that went into effect on January 4, 2022. The plaintiff stresses in the case that the compliance agreement was reached without the benefit of any public comment or scrutiny, did not provide for continuing jurisdiction to enforce its terms, and generally lacked any mechanism by which to enforce against Bluefin the requirements of the Clean Water Act. 

“The ‘compliance agreement’ did not provide for the payment of any penalty amount at all even though the [Clean Water Act] makes penalties for polluters who violate the terms of their permits mandatory,” the case elaborates. “In fact, the ‘compliance agreement’ expressly waived its right to seek any penalties or exercise ‘any administrative, legal or equitable remedies available to the MPCS to address the alleged violations [addressed by the compliance agreement], as long as the Regulated Party [Defendant] performs according to and has complied with the terms and conditions contained in [the compliance agreement],’” the suit states. 

The lawsuit looks to represent all individuals who have visited Tofte Town Park, which sits immediately adjacent to Bluefin Bay and shares access to the same stretch of the Lake Superior shoreline, from November 30, 2018 to August 31, 2021. 

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