NOI of Intent to sue sent to Trump Tower for Clean Water Act violations in Chicago River

Sent last week, on behalf of Sierra Club and Friends of Chicago River

June 14, 2018 BY CERTIFIED MAIL

Trump International Hotel & Tower 401 N. Wabash Ave. Chicago, Illinois 60611

National Registered Agents Inc. 208 S. LaSalle St., Suite 814 Chicago, IL 60604

RE: Notice of Intent to Sue Regarding Continuing Violations of the Clean Water Act

Dear Sir or Madam,

We write on behalf of the Sierra Club and Friends of the Chicago River, whose members recreate in the Chicago River and reside near the facility known as Trump International Hotel & Tower (“Trump International”), 401 N. Wabash Avenue, Chicago, Illinois 60611 (“Facility”). This letter constitutes notice of the intent of Sierra Club and Friends of the Chicago River to sue Trump International for violations of the federal Clean Water Act (“CWA”) resulting from Trump International operating in violation of the CWA, federal and state regulations promulgated thereunder, and the facility’s National Pollutant Discharge Elimination System (“NPDES”) permit. These violations include Trump International’s ongoing illegal operation of a cooling water intake structure that siphons water from the Chicago River and likely traps and kills fish and other wildlife in this increasingly ecologically and recreationally vibrant waterway.

Members of the Sierra Club and Friends of the Chicago River fish and otherwise recreate on this stretch of the Chicago River and are adversely affected by the failure of Trump International to study and to minimize the impingement and entrainment of aquatic life caused by water intakes from the Facility. See, e.g., Alex Ruppenthal, Young Angler Catches Rare American Eel at Chicago River Fishing Event, WTTW (Oct. 17, 2017), https://chicagotonight.wttw.com/2017/10/17/young- angler-catches-rare-american-eel-chicago-river-fishing-event.

Trump International obtained its most recent NPDES permit, No. IL0079812 (“Permit”), from the Illinois Environmental Protection Agency (“IEPA”) on March 15, 2013. Ex. A. The Permit establishes effluent limits and conditions on wastewater discharges from the Facility. Special Condition 8 of that permit states:

"In order for the Agency to evaluate the potential impacts of cooling water intake structure operations pursuant to 40 C.F.R. § 125.90(b), the permittee shall prepare and submit information to the Agency outlining current intake structure conditions at this facility, including a detailed description of the current intake structure operation and design, description of any operational or structural modifications from original design parameters, source waterbody flow information, or other information as necessary.

"This information shall also include a summary of historical 316(b) related intake impingement and/or entrainment studies, if any, as well as current impingement mortality and/or entrainment characterization data; and shall be submitted to the Agency within six (6) months of the permit’s effective date."

Standard Condition 27 of the Permit states that “[t]he permittee shall comply with, in addition to the requirements of the permit, all applicable provisions of 35 Ill. Adm. Code, Subtitle C . . . .” Section 306.201 of that subtitle requires new water intake structures to “be so designed as to minimize harm to fish and to other aquatic organisms.” 35 Ill. Adm. Code § 306.201.

Violations of conditions in a NPDES permit constitute a violation of Section 301(a) of the CWA, 33 U.S.C. § 1311(a). See also Nat. Res. Def. Council v. Metro. Water Reclamation Dist., 175 F. Supp. 3d 1041, 1052–53 (N.D. Ill. 2016).

Based on publicly available documents obtained through the NPDES permitting process and the Illinois Freedom of Information Act (“FOIA”), it appears that Trump International has not performed studies required by Special Condition 8 or undertaken the work necessary to minimize damage to aquatic life from its intake structure and, therefore, has violated and will continue to violate NPDES permit No. IL0079812, Section 301(a) of the CWA, 33 U.S.C. § 1311(a), 40 C.F.R. § 122.21(r), 40 C.F.R. §§ 125.80–.89, and 35 Ill. Adm. Code § 306.201 (2018). The nature and extent of the violations as currently known to Sierra Club and Friends of the Chicago River are as follows.

I. The Federal Regulations regarding intake structures, history of the Facility and Trump International’s violations of the Clean Water Act.

Federal regulations, in 40 C.F.R. §§ 125.80–.89, establish requirements under Section 316(b) of the Clean Water Act for dischargers having cooling water intake structures that are “new facilities.” Under the law, a “new facility” is any “building, structure, facility or installation” constructed after January 17, 2002; an existing facility is one that is not a new facility. 40 C.F.R. § 125.83.

Documents obtained by Sierra Club and Friends of the Chicago River through the FOIA disclose the following:

1. The Chicago Sun Times building that previously existed at the Facility’s location had an on-site intake structure that has been retained for use by the Facility. However, a second, separate intake was constructed by Trump International for the Facility, which numerous documents state is a new intake line. Ex. B, p. 2; Ex. C, Attach. A; Ex. D, p. 5. As explained by one of Trump International’s consultants, “One intake was constructed during the hotel project (the new intake), and one intake was existing from the Chicago Sun Times Building.” Ex. C, Attach. A.

2. Construction began on the facility in March of 2005. Accordingly, the second intake was built after March 2005. See Ex. E, p. 6 (Richard High, Trump’s Triumphant Tower, Apr. 9, 2010, https://www.khl.com/trumps-triumphant-tower/55450.article).

3. Trump International presumably began using the new intake no later than May 2008. Ex. I, p. 2. The documents released by IEPA contain no indication that Trump International has ever attempted to comply with the regulations governing water intakes at new facilities and described herein. It appears, then, that for approximately a decade Trump International has been failing to comply with 40 C.F.R. § 122.21(r) and 40 C.F.R. § 125.84, which set out permit application and operation requirements related to cooling water intakes at new facilities, through its operation of an intake structure that was not properly permitted.

4. After the completion of construction, Trump International discharged heated effluent without a required NPDES permit. In September 2011, IEPA charged Trump International with discharging pollutants and construction of a discharging facility without a permit. Trump International eventually received a $46,000 fine in 2013. Exs. F, G.

5. In September 2012, Trump International received a permit to discharge an average of 13,644 gallons per day of water. Ex. H, p. 2.

6. In October 2012, a consultant employed by Trump International informed IEPA that Trump International had been misreading its meter and had been using one thousand times more water than it had been previously reporting. The actual intake, according to the letter, is a monthly average of 19.7 MGD. Ex. I.

7. In March 2013, IEPA issued Trump International the Permit, modifying the permit issued in September 2012 to reflect an average discharge flow of 19.7 million gallons per day. Special Condition 8 of the Permit required Trump International to send information within six months (i.e. September 2013) to allow IEPA to make a Best Professional Judgment on entrainment Best Practicable Technology.

In January 2018, IEPA gave notice of a new draft permit for the Facility. Ex. B, pp. 1-4. In the Fact Sheet for the draft 2018 permit, IEPA stated:

"The following Special Condition language was in the previous permit for 316(b). “In order for the Agency to evaluate the potential impacts of cooling water intake structure operations pursuant to 40 C.F.R. § 125.90(b), the permittee shall prepare and submit information to the Agency outlining current intake structure conditions at this facility, including a detailed description of the current intake structure operation and design, description of any operational or structural modifications from original design parameters, source waterbody flow information, or other information as necessary.

The information shall also include a summary of historical 316(b) related intake impingement and / or entrainment studies, if any, as well as current impingement mortality and / or entrainment characterization data; and shall be submitted to the Agency within six (6) months of the permit’s effective date.

Upon the receipt and review of this information, the permit may be modified to require the submittal of additional information based on a Best Professional Judgment review by the Agency. This permit may also be revised or modified in accordance with any laws, regulations, or judicial orders pursuant to Section 316(b) of the Clean Water Act.”

The facility did not submit this information [referring to Cooling Water Intake Structure (CWIS) Description and Operation Discussion provided by the facility] to the Agency as required by the special condition. The information that is discussed above was provided by the facility and submitted after the renewal application was received by the Agency."

While Trump International did submit some of the data that it was required to submit in 2013, albeit four years late, in 2017, Ex. C, Attachs. A, B, it does not appear from the documents made available to Sierra Club and Friends of the Chicago River that Trump International has supplied current impingement mortality and entrainment characterization data or fully supplied other data that it was required to submit by Special Condition 8, and it has not submitted the data that it must submit as a new facility under 40 C.F.R. §122.21(r)(1)(i) and 40 C.F.R. §§ 125.80–.89. Further, it does not appear that Trump International has taken any steps to minimize the impact of its intake on fish and other wildlife, although it is taking in more than a thousand times more water than Trump International originally reported to IEPA.

The federal regulation cited by IEPA in the 2018 public notice as potentially authorizing an extension to Trump International until 2021 to comply with the substantive requirements of 40 C.F.R. § 122.21(r), 40 C.F.R. § 125.95(a)(2), applies only to “existing facilities” and is therefore inapplicable to the new facility built by Trump International after 2002. The Facility is “new” for purposes of the CWA, making 40 C.F.R. § 125.95(a)(2) inapplicable. “New facilities” must supply information and studies complying with 40 C.F.R. §122.21(r) 180 days before commencement of water withdrawals, 40 C.F.R. §122.21(c)(1), and must comply with the requirements of 40 C.F.R. §§ 125.80–.89 subpart I before discharging. IEPA has no authority to grant Trump International additional time to comply with requirements with which it should have complied before it began to discharge in 2008, and with which it was further required to comply under Special Condition 8 of its 2013 permit.

II. Trump International’s Violations

This notice letter is based on publicly available information. Additional information, including information in the Facility’s possession, may reveal additional violations. This letter covers all such violations occurring within five years immediately preceding the date of this notice letter.

This letter provides notice of the intent of Sierra Club and Friends of the Chicago River to file a federal enforcement action under the authority of the Clean Water Act’s citizen-suit provision, 33 U.S.C. § 1365(a), to secure appropriate relief for these violations. The Sierra Club and Friends

Trump International’s longstanding and ongoing non-compliance have demonstrated that it will continue to violate the law unless enjoined and given a penalty likely to compel respect for the law.

Trump International, by continuing water intake without performing the studies and taking the actions necessary to minimize the impact of its operations on aquatic life, has violated and is continuing to violate Section 316(b) of the CWA, 40 C.F.R. §122.21(r), 40 C.F.R. §§ 125.80–89, 35 Ill. Adm. Code § 306.201, and Special Condition 8 and Standard Condition 27 of the Permit on every day in which it takes water in through the new intake.

of the Chicago River seek to improve water quality in the Chicago River and restore and maintain the biological integrity of the Chicago River by securing long-term compliance with applicable law.

Should you or your attorney wish to discuss this matter, please feel free to contact us.

Sincerely,

Albert Ettinger 53 W. Jackson Blvd. #1664 Chicago, IL 60604 (773) 818-4825 ettinger.albert@gmail.com

Mark N. Templeton Robert A. Weinstock Abrams Environmental Law Clinic University of Chicago Law School 6020 S. University Ave. Chicago, IL 60637 (773) 702-9661 templeton@uchicago.edu rweinstock@uchicago.edu

Legal counsel for:

Sierra Club, Illinois Chapter 70 E. Lake St., Suite 1500 Chicago, IL 60601 (312) 251-1680

Friends of the Chicago River 411 S Wells St. #800 Chicago, IL 60607 (312) 939-0490

cc:

Scott Pruitt, Administrator U.S. Environmental Protection Agency Mail Code 1101A 1200 Pennsylvania Ave. N.W. Washington, D.C. 20460

Cathy Stepp, Regional Administrator U.S. Environmental Protection Agency, Region 5 77 W. Jackson Blvd. Chicago, IL 60604

Alec Messina, Director Illinois Environmental Protection Agency 1021 North Grand Avenue East P.O. Box 19276 Springfield, IL 62794-9276

Lisa Madigan, Illinois Attorney General 100 West Randolph Street Chicago, IL 60601

exhibits attached to original. Original letter and exhibits are available by sending an email request to Ettinger.Albert@gmail.com