Motion for Preliminary Injunction in PEOPLE OF THE STATE OF IL vs 401 NORTH WABASH VENTURE,| Trellis.Law

On August 13, 2018 a Answer was filed involving a dispute between People Of The State Of Il, and 401 North Wabash Venture,, for Injunction in the District Court of Cook County.

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Hearing Date: No hearing scheduled
Location: <>
J udge: Calendar, 1
FILED
11/2/2023 3:32 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
CIRCUIT CLERK
COUNTY DEPARTMENT, CHANCERY DIVISION
COOK COUNTY, IL
2018CH10229
PEOPLE OF THE STATE OF ILLINOIS) Calendar, 1
ex rel. KWAME RAOUL, Attorney 25056368
General of the State of Illinois,

Plaintiff,

and
) No. 2018 CH 10229
SIERRA CLUB and FRIENDS OF THE ) Judge Thaddeus L. Wilson
CHICAGO RIVER,

Plaintiff-Intervenors,

vs.

401 NORTH WABASH VENTURE, LLC,)
d/b/a TRUMP INTERNATIONAL )
HOTEL & TOWER, )
Defendant. )

DEFENDANT 401 NORTH WABASH VENTURE LLC’S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF-INTERVENORS’ AMENDED
COMPL. TERVENTION FOR INJUNCTIVE RELIEF
AND CIVIL PENALTIES

Defendant 401 North Wabash Venture LLC, by its undersigned attorneys, files this Answer

and Affirmative Defenses to Plaintiff-Intervenors’ Amended Complaint in Intervention for

Injunctive Relief and Civil Penalties, and responds as follows:

1 SIERRA CLUB and FRIENDS OF CHICAGO RIVER (“Plaintiff-Intervenors”)

bring this action to stop ongoing violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. (the

“CWA”), committed by, and the public nuisance created by, defendant 401 N. WABASH

VENTURE LLC, doing business as TRUMP INTERNATIONAL HOTEL AND TOWER

(“Defendant” or “Trump Intentional”). From its facility located at 401 N. Wabash Avenue,

Chicago, IL 60611 (“Trump Tower”), Defendant has discharged in violation of a National
Pollutant Discharge Elimination System (“NPDES”) permit that it held between 2013 and 2017

and has discharged without a permit since August 31, 2017. Defendant’s ongoing operation and

discharges from Trump Tower continue to violate the terms of its now-expired NPDES permit.

Specifically, Defendant has never complied with the laws, regulations, or permit conditions that

govern its intake of massive volumes of Chicago River water and relate to the impingement and

entrainment of fish and other aquatic life. Now, after its NPDES permit has expired, Defendant is

discharging without being subject to any specified permit limits or conditions designed to protect

aquatic life, recreation or other uses of the Chicago River. Trump International continues to violate

the law in another, distinct way through its regular, recurring misrepresentation of flow rate to the

Illinois Environmental Protection Agency (“IEPA”) in its monthly Discharge Monitoring Reports

(“DMRs”). In addition, the Defendant is interfering with the common rights of the public to fish,

canoe, and otherwise to recreate in the Chicago River by operating a facility that operates without

a permit and fails to minimize its impact on fish and aquatic life.

ANSWER: Defendant 401 North Wabash Venture, LLC (“401 North”) denies the
allegations of paragraph No. 1.

VENUE AND JURISDICTION

2 The subject matter of this dispute is located in Cook County, Illinois. Defendant

operates in Cook County, and its withdrawals and discharges occur in Cook County. Cook County

is the appropriate venue for this dispute. 735 ILCS 5/2-101 (West 2016); 33 U.S.C § 1365(c)(1).

ANSWER: 401 North admits the allegations of paragraph No. 2.

3 The circuit court has jurisdiction over this matter pursuant to Illinois Constitution,

Art. VI, § 9 (“Circuit Courts shall have original jurisdiction of all justiciable matters except when

the Supreme Court [of Illinois] has original and exclusive jurisdiction * * * .”)

ANSWER: 401 North admits the allegations of paragraph No. 3.
4 Plaintiff-Intervenors bring Counts I and III of this Complaint pursuant to federal

law, over which state courts generally have concurrent jurisdiction, and bring Count II under the

common law of public nuisance of the State of Illinois.

ANSWER: 401 North admits that in Counts I and III, Plaintiff-Intervenors are
attempting to assert federal claims under federal law, in State Court. 401 North admits that in
Count II, Plaintiff-Intervenors attempt to state a common law nuisance claim under Illinois
common law. 401 North denies the remaining allegations of paragraph No. 4.

5 On June 14, 2018, Plaintiff-Intervenors served a Notice of Intent to Sue (“NOT”)

upon the Defendant by mailing that NOI via certified mail to Defendant, the United States

Environmental Protection Agency, the IEPA, and the Illinois Attorney General, as required under

33 U.S.C. § 1365(b)(1). The NOI meets the requirements of 40 C.F.R. §§ 135.1 et seq. and
provided the Defendant with notice of the CWA violations alleged in Count I of this Amended

Complaint in Intervention. A copy of the NOI, including its several original attachments, is

Attachment 1 to this Complaint.

ANSWER: 401 North admits that Plaintiff-Intervenors served a copy of the NOI
attached to Plaint ff -Intervenors’ Amended Complaint. 401 North denies the remaining allegations
of paragraph No. 5, including that Plaintiff-Intervenors have any right to bring a federal cause of
action in State Court in this case.

6. On July 10, 2023, Plaintiff-Intervenors served a second Notice of Intent to Sue

(“2023 NOI”) upon the Defendant by mailing that 2023 NOI via certified mail to Defendant, the

United States Environmental Protection Agency, the IEPA, and the Illinois Attorney General, as

required under 33 U.S.C. § 1365(b)(1). The 2023 NOI meets the requirements of 40 C.F.R. §§

135.1 et seq. and provided Defendant with notice of the CWA violations alleged in Count III in

this Amended Complaint. A copy of the 2023 NOI, including its several original attachments, is

Attachment 2 to this Amended Complaint.

ANSWER: 401 North admits that Plaintiff-Intervenors served a copy ofthe 2023 NOI
attached to Plaintiff-Intervenors’ Amended Complaint. 401 North denies the remaining allegations
of paragraph No. 6, including that Plaintiff-Intervenors have any right to bring a federal cause of
action in State Court in this case.

7 In this case charging Defendant with violating the Clean Water Act and causing a

public nuisance through water pollution, Plaintiff-Intervenors have standing to sue under the Clean

Water Act, Illinois common law and Article XI of the Illinois Constitution.

ANSWER: 401 North denies that Plaintiff-Intervenors have any standing or other legal
tight to bring a federal cause of action in State Court in this case, which this Court affirmed in
granting 401 North’s Motion to Dismiss Count I of Plaintiff-Intervenors Complaint. 401 admits
that private citizens can bring actions for nuisance under Illinois common law. In this case,
however, the Illinois Attorney General has already filed suit and is more than adequately enforcing
the applicable environmental laws against 401 North. 401 North denies the remaining allegations
of paragraph No. 7.

PARTIES

8 Plaintiff-Intervenor Sierra Club, a not-for-profit corporation organized and existing

under the laws of the State of California, is a national environmental organization with

approximately 789,000 members with offices and programs authorized and doing business in the

State of Illinois, including Chicago, Illinois. As of June 2018, 30,556 of these members belong to

the Illinois Chapter. The Sierra Club’s purpose is to protect the natural environment and promote

the responsible use of the Earth’s ecosystems and resources. Members of the Sierra Club fish and

otherwise seek to enjoy natural life and recreation in the Chicago River, including in the area

immediately adjacent to Trump Tower.

ANSWER: 401 North has insufficient knowledge to form a belief as to the truth of the
allegations in paragraph No. 8, and therefore denies them.

9. Plaintiff-Intervenor Friends of the Chicago River (“FOCR”) is a not-for-profit

corporation organized and existing under the laws of the State of Illinois, whose mission is to

improve and protect the Chicago River system for people, plants, and animals. FOCR works to

improve the water quality of the river so that it can support native plants, fish and other wildlife,
and a variety of recreational uses; performs on-the-ground projects that result in physical

improvements and the preservation of quality habitat; and engages in education and outreach

programs that inform and inspire people to help revitalize the Chicago River. As of August 2018,

FOCR has 6,000 members, volunteers and online advocates, many of whom fish and otherwise

seek to enjoy natural life and recreation in the Chicago River, including in the area immediately

adjacent to Trump Tower. FOCR has held events designed to promote fishing in the segment of

the Chicago River affected by the violations alleged.

ANSWER: 401 North has insufficient knowledge to form a belief as to the truth of the
allegations in paragraph No. 9, and therefore denies them.

10. Plaintiff-Intervenors each have members who are directly interested in and affected

by Defendant’s withdrawal of water from the Chicago River and discharges to the Chicago River.

Some of those members use the Chicago River for fishing, canoeing, kayaking, bicycling, and

other River-adjacent recreational activities that have been and, if Defendant is not enjoined, will

continue to be affected by Defendant’s unlawful withdrawals and discharges.

ANSWER: 401 North has insufficient knowledge to form a belief as to the truth of the
allegations in paragraph No. 10, and therefore denies them.

ll. Defendant 401 N. Wabash Venture LLC, is a Delaware limited liability company

duly authorized to transact business in Illinois. Pursuant to Illinois Secretary of State records, the

manager of Defendant is 401 Mezz Venture LLC, also a Delaware limited liability company and

authorized to do business in Illinois, which is located at 725 5th Avenue, 26th Floor, New York,

NY 10022. Defendant also does business as “Trump International Hotel & Tower.” Upon

information and belief, Defendant owns and operates Trump Tower. When there was a valid

NPDES permit for Trump Tower, that permit was numbered IL0079812 and was issued to “Trump
International Hotel & Tower” (the “2013 NPDES Permit”). Defendant does not own either side of

the Chicago River.

ANSWER: 401 North admits the allegations of paragraph No. 11 as they pertain to the
ownership of 401 North’s hotel and tower (hereinafter “Facility”) and the NPDES permit. To the
extent that Plaintiff-Intervenors imply that 401 North owns any side or portion of the Chicago
River, that allegation is denied.

FACTUAL AND LEGAL BACKGROUND

12. Trump Tower was built on the site of the former Chicago Sun Times building.

ANSWER: 401 North admits that the Facility was built on the site of the former
Chicago Sun Times building and denies any implied allegation that no structures remain at the
former Sun-Times building.

13. Trump Tower is located along the north bank of the Chicago River.

ANSWER: 401 North admits that the Facility is located along the north bank of the
Chicago River.

14. Construction of Trump Tower began in or around March of 2005. (See Attachment

1, NOI Ex. E (“Trump’s Triumphant Tower’).)

ANSWER: 401 North admits that the construction of the Facility began in or around
March 2005.

15. Trump Tower uses a heating, ventilation, and air conditioning (“HVAC”) system

that contains a cooling water intake/discharge system.

ANSWER: 401 North admits the allegations of paragraph No. 15.

16. Trump Tower’s last effective permit authorized the cooling water intake/discharge

system to withdraw approximately 19.7 million gallons per day (“MGD”) from the Chicago River

and returns approximately the same volume in the form of heated effluent through an outfall

designated as “Outfall No. 001.”

ANSWER: 401 North denies the allegations of paragraph No. 15.

17. 100% of the water withdrawn by Trump Tower is used for cooling purposes.
ANSWER: 401 North admits the allegations of paragraph No. 17.

18. There are two water intake structures at 401 N. Wabash Avenue.

ANSWER: 401 North admits the allegations of paragraph No. 18.

19. When Trump Tower was constructed, the building retained the water intake

structure that previously existed there, the site of the former Chicago Sun Times building.

ANSWER: 401 North admits the allegations of paragraph No. 19.

20. A second, “new” intake was constructed for Trump Tower, sometime after March

2005. Numerous documents state this is a new facility and separate from the Chicago Sun Times

intake. (See Attachment 1, NOI Exs B, C, and D.) As explained by one of Trump International’s

consultants, “[o]ne intake was constructed during the hotel project (the new intake), and one intake

was existing from the Chicago Sun Times Building.” (Attachment 1, NOI Ex. C.)

ANSWER: 401 North admits, and disclosed to Illinois EPA years ago when it applied
for its initial 2012 NPDES permit, that there are two intakes — the old intake from the Sun-Times
building and the intake installed in 2005. 401 North further states that Attachment 1 to Plaintiff-
Intervenors’ Amended Complaint speaks for itself and no answer is necessary.

21. Heated effluent is considered a “pollutant” under the Clean Water Act. 33 U.S.C. §

1362(6).
ANSWER: Paragraph 21 cites a portion of a statutory provision, and contains no
allegations against 401 North requiring admission, denial, or other response.

22. Under the Clean Water Act, discharge of a pollutant is illegal unless the discharger

obtains a NPDES permit and is permissible only to the extent the discharger acts in compliance

with such properly issued NPDES permit. 33 U.S.C. § 1342.

ANSWER: Paragraph 22 cites a portion of a statutory provision, and contains no
allegations against 401 North requiring admission, denial, or other response.

23. Because Trump International planned to and did in fact discharge heated effluent

into the Chicago River, it was required to obtain a NPDES permit.
ANSWER: 401 North admits the allegations of paragraph No. 23.

24. Beginning not later than May 2008, Trump International used the new intake and

discharged heated effluent without a required NPDES permit. (Attachment 1, NOI Ex. F.)

ANSWER: 401 North admits the allegations of paragraph No. 24.

25. In September 2011, IEPA issued a notice of violation to Trump International

alleging that Defendant was discharging pollutants and had constructed a discharging facility

without a required NPDES permit. Trump International resolved those violations by, among other

things, agreeing to pay a $46,000 fine in 2013. (Attachment 1, NOI Exs F and G).

ANSWER: 401 North admits the allegations of paragraph No. 25.

26. At the time of construction, Defendant relied on the guidance of their outside

engineering consultant, OLKO Engineering (“OLKO”), to determine the need for a permit. (See

Defendant’s Answer and Affirmative Defenses Answer No. 24).

ANSWER: 401 North admits the allegations of paragraph No. 26.

27. Defendant was told by OLKO in 2005 that they needed a permit from IEPA to

withdraw water from the Chicago River at their planned facility.

ANSWER: 401 North denies the allegations of paragraph No. 27.

28. In September 2012, Trump International received a permit to discharge an average

of 13,644 gallons of water per day. (Attachment 1, NOI Ex. H).

ANSWER: 401 North admits the allegations of paragraph No. 28.

29. This permit limit of 13,664 gallons of water per day was based on the data Trump

International provided to IEPA as part of its permit application.

ANSWER: 401 North admits the allegations of paragraph No. 29.
30. In October 2012, a consultant employed by Trump International wrote to IEPA to

inform the agency that Trump Tower had been misreading a meter and was actually withdrawing

and discharging more than one thousand times more water than it reported on its application, and

that it was permitted to discharge under the September 2012 permit. According to that letter, the

actual flow, correctly calculated was a monthly average of 19.7 MGD with a daily maximum of

26.6 MGD. (Attachment 1, NOI Ex. I).

ANSWER: 401 North denies the allegations of paragraph No. 30.

31. On March 15, 2013, IEPA issued Trump International the 2013 NPDES Permit, a

modified permit to discharge an average flow of 19.7 million gallons per day. (Attachment 1, NOI

Ex. A.)
ANSWER: 401 North denies the allegations of paragraph No. 31.

32. Special Condition 8 of the 2013 NPDES Permit required Trump International to

submit certain information to IEPA within six months, i.e., by September 2013. The information

was required to allow IEPA to make a Best Professional Judgment that would determine the Best

Practicable Technology for the cooling water intake structures at Trump Tower.

ANSWER: 401 North admits that the 2013 NPDES permit contained a Special
Condition 8. 401 North denies that paragraph No. 32 correctly describes the requirements of
Special Condition 8.

33. Specifically, Special Condition 8 of that permit states:

In order for the Agency to evaluate the potential impacts of cooling water intake
structures operations pursuant to 40 CFR 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 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.

ANSWER: The cited provisions of Special Condition 8 in 401 North’s NPDES permit
speak for themselves, and no answer is required.

34. Additionally, Standard Condition 27 of the Permit states that “the permittee shall

comply with, in addition to the requirements ofthe permit, all applicable provisions of 35 Ill. Adm.

Code, Subtitle C * * * .”

ANSWER: The cited provisions of Standard Condition 27 in 401 North’s NPDES
permit speak for themselves, and no answer is required.

35. 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 Il]. Adm. Code § 306.201.

ANSWER: 401 North states that paragraph No. 35 cites regulatory definitions and
contains no allegations against 401 North requiring admission, denial or other response.

36. 40 CFR 125 Subpart I (40 CFR §125.80 et seq.) establishes 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 one constructed after January 17, 2002. 40

CFR §125.83.
ANSWER: 401 North states that paragraph No. 36 cites regulatory definitions and
contains no allegations against 401 North requiring admission, denial or other response.

37. In January 2018, IEPA gave notice of a new draft permit for the Facility.

(Attachment 1, Ex. B). In the Fact Sheet for the draft 2018 permit, IEPA stated:

The following Special Condition language was in the previous permit for 316(b).
“Tn order for the Agency to evaluate the potential impacts of cooling water intake
structure operations pursuant to 40 CFR 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.

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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 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.

40 CFR 122.21(r)(1)(ii) states that all existing facilities must submit for review the
information required under paragraphs (r)(2) — (8). At this time the facility has not
submitted any of this information.

ANSWER: The cited provisions of the Facts Sheet to 401 North’s NPDES permit speak
for themselves, and no answer is required.

38. The federal regulations cited in the IEPA public notice apply only to “existing

facilities” and are therefore inapplicable to Trump Tower. Trump Tower was built after 2002,

which requires the facility to be considered “new” for purposes of the CWA. See 40 C.F.R. §

125.83.

ANSWER: The allegations of paragraph No. 38 contain legal conclusions and provide
an inaccurate synopsis of the law, and thus, 401 North denies the allegations in paragraph No. 38.

39. “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.

ANSWER: Paragraph No. 39 cites regulatory definitions and contains no allegations
against 401 North requiring admission, denial or other response.

40. The IEPA public notice indicates that Trump International did submit some of the

data it was required to submit in 2013, though that submission appears to have been made four

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years later in 2017. (Attachment 1, NOI Ex. C). Based upon information and belief, however,

Trump International has never supplied current impingement mortality and entrainment

characterization data or supplied fully other data required under Special Condition 8, and Trump

International has not submitted the data required of a new facility under 40 CFR §122.21(@)(1)G@)

and 40 CFR 125 subpart I.

ANSWER: Attachment 1 to Plaintiff-Intervenors’ Amended Complaint speaks for
itself, and no answer is required. 401 North denies the remaining allegations in paragraph No. 40.

41. Further, upon information and belief, Trump International has not taken proper

steps to minimize the impact of its intake on fish and other wildlife.

ANSWER: 401 North denies the allegations of paragraph No. 41.

42. While operating under the 2013 NPDES permit, Trump International must comply

with the reporting requirements of the 2013 NPDES permit.

ANSWER: 401 North admits the allegations of paragraph No. 42.

43. Federal regulations in 40 C.F.R. § 122.41 establish reporting and monitoring

requirements for NPDES permit holders under Section 402(b) of the Clean Water Act.

ANSWER: Paragraph 43 cites a portion of a regulatory provision, and contains no
allegations against 401 North requiring admission, denial, or other response.

44, Federal regulations in 40 C.F.R. § 122.41(1)(4)(i) and standard condition 12(e)(1)

of the 2013 NPDES Permit require Trump Tower to report monitoring results on a DMR specified

by IEPA.
ANSWER: Paragraph 44 cites a portion of a regulatory provision, and contains no
allegations against 401 North requiring admission, denial, or other response. 401 North further
answers by stating that Standard Condition 12(e)(1) of the 2013 NPDES permit speaks for itself,
and no answer is required.

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45. Special Condition 1 of the 2013 NPDES Permit requires that “flow shall be

measured in units of Million Gallons per Day (“MGD”) and reported as a monthly average and a

daily maximum on the [DMR].” (Attachment 1, NOI Ex. A).

ANSWER: Special Condition 1 of the 2013 NPDES Permit speaks for itself, and no
answer is required.

46. Special Condition 3 of the 2013 NPDES Permit further clarifies that “the permittee

shall record monitoring results on Discharge Monitoring Report Forms using one such form for

outfall each month.” (Attachment 1, NOI Ex. A).

ANSWER: Special Condition 3 of the 2013 NPDES Permit speaks for itself, and no
answer is required.

47. Federal regulations in 40 C.F.R. § 122.22 require that “all reports required by

permits, and other information requested by the Director shall be signed by a person described in

paragraph (a).”

ANSWER: Paragraph 47 cites a portion of a regulatory provision, and contains no
allegations against 401 North requiring admission, denial, or other response.

48. Federal regulations in 40 C.F.R. § 122.22(a)(1) require the signature of “a

responsible corporate officer.”

ANSWER: Paragraph 48 cites a portion of a statutory provision, and contains no
allegations against 401 North requiring admission, denial, or other response.

49. In the case of Trump International, upon information and belief, such person

signing its DMR submissions has been a corporate officer in charge of a principal business function

or someone performing a similar decision-making function for the corporation.

ANSWER: 401 North denies the allegations in paragraph No. 49.

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50. From May 2010 to April 2017, Trump International’s designated corporate officer

tasked with confirming the accuracy of the reports was its Director of Finance, John Gorski, who

did not have a background in engineering.

ANSWER: 401 North denies the allegations in paragraph No. 50.

51. 40 C.F.R § 122.22(d) and Standard Condition 11(d) of the 2013 NPDES Permit

state that the person signing reports required under the 2013 NPDES Permit shall make the

following certification:

I certify under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate, and complete.
I am aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations.

ANSWER: Paragraph 51 cites a portion of a regulatory provision, and contains no
allegations against 401 North requiring admission, denial, or other response. 401 North further
answers that Standard Condition 11(d) of the 2013 NPDES permit speaks for itself, and no answer
is required.

52. It is a violation of Standard Condition 21 of the 2013 NPDES Permit to make false

statements in DMRs. (Attachment 1, NOI Ex. A, “The permitee shall not make any false statement,

representation or certification in any application, record, report, plan or other document submitted

to the Agency or USEPA, or required to be maintained under this permit.”)

ANSWER: Standard Condition 21 of the 2013 NPDES Permit speaks for itself, and no
answer is required.

53. Since at least February 2013, Trump International has inaccurately reported to

TEPA the flow rates of its water intake.

ANSWER: 401 North denies the allegations in paragraph No. 53.

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54. Specifically, Trump International has been reporting flow rates on its DMRs that it

measures in gallons per minute (“GPM”), as recorded by the building’s automated system.

ANSWER: 401 North denies the allegations in paragraph No. 54.

55. Trump International is aware that Special Condition 1 of the 2013 NPDES permit

requires that it report its flow rates.

ANSWER: Special Condition 1 of the 2013 NPDES Permit speaks for itself, and no
answer is required.

56. Trump International has produced flow rate data in this litigation. This flow rate

data is generated by Trump International’s building automated systems, which records flow rates

in units of GPM.

ANSWER: 401 North admits that it produced flow rate data in this litigation that was
generated by the Building Automation System (“BAS”). 401 North denies the remaining
allegations of paragraph No. 56.

37. Trump International’s flow rate data produced in this litigation, when converted

from GPM to MGD, the required unit by IEPA, results in flow rates higher than the figures Trump

International reported to IEPA in its DMRs.

ANSWER: 401 North denies the allegations in paragraph No. 57.

58. For example, a reading of Figure 2-2 in the Comprehensive Demonstration Study

indicates that the average July flow rate from 2015 to 2019 was approximately 10.3 MGD;

however, the July flow rate averages from 2016 to 2019, calculated based on hourly flow rate logs,

range from 12.2 MGD to 14.2 MGD.

ANSWER: The Comprehensive Demonstration Study speaks for itself, and no answer
is required in reference to its content. 401 North denies the remaining allegations in paragraph No.
58.

59, To convert from GPM to MGD, the GPM figure must be divided by 1,000,000 (to

convert to millions of gallons) and multiplied by 1,440 (to covert minutes to days).

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ANSWER: Paragraph No. 59 contains no allegations against 401 North, and no answer
is required. If an answer is deemed to be required, 401 North denies the allegations in paragraph
No. 59.

60. The information Defendant provides IEPA in its DMRs does not reflect this

conversion.

ANSWER: 401 North denies the allegations in paragraph No. 60.

61. Defendant, therefore, continues to misreport its flow rates in its DMRs.

ANSWER: 401 North denies the allegations in paragraph No. 61.

62. By failing to convert GPM to MGD correctly, Defendant has reported flow rates to

IEPA that are lower than Defendant’s actual flow rates.

ANSWER: 401 North denies the allegations in paragraph No. 62.

63. Flow rates are proportional to estimated entrainment, thus, Trump International’s

environmental impact has been misrepresented to IEPA.

ANSWER: 401 North denies the allegations in paragraph No. 63.

64. On August 14, 2023, counsel for Trump International confirmed that the underlying

reports are recorded in GPM. (Attachment 3, Trump International August 14, 2023 Letter to

IEPA).
ANSWER: Attachment 3 to Plaintiff-Intervenors Amended Complaint speaks for itself,
and no answer is required.

65. As of August 14, 2023, counsel for Trump International stated that Trump

International still records and reports its flow rates in GPM on DMRs submitted to IEPA and

declared that Trump International will continue to record and report flow rates in units of GPM.

(Attachment 3, Trump International August 14, 2023 Letter to IEPA).

ANSWER: = Attachment 3 to Plaintiff-Intervenors Amended Complaint speaks for itself,
and no answer is required. If an answer is deemed to be required, 401 North denies the allegations
in paragraph No. 65.

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66. Defendant continues to report its flow rates in GPM in its DMRs.

ANSWER: 401 North denies the allegations in paragraph No. 66.

67. Violations of conditions in an NPDES permit constitute a violation of Section

301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). See also Natural Resources Defense Council

v. Metropolitan Water Reclamation District, 175 F. Supp. 3d 1041, 1052-53 (N.D. Ill. 2016).

ANSWER: 401 North denies the allegations of paragraph No. 67 as they apply to this
case filed by the Illinois Attorney General and Illinois IEPA in State Court.

68. On August 31, 2017, the NPDES permit for Trump International—which IEPA

issued in 2012 and modified in 2013—expired.

ANSWER: 401 North admits the allegations of paragraph No. 41.

69. The Agreed Interim Order entered in this matter on September 28, 2018

(Attachment 4, Agreed Interim Order) requires Trump International to continue to comply with

the terms of the expired and unrenewed 2013 NPDES permit.

ANSWER: = Attachment 4 to Plaintiff-Intervenors Amended Complaint speaks for itself,
and no answer is required.

70. The permit terms of the 2013 NPDES Permit continue to apply to Trump Tower’s

operation. (Attachment 4, Agreed Interim Order).

ANSWER: Attachment 4 to Plaintiff-Intervenors Amended Complaint speaks for itself,
and no answer is required.

71. The Agreed Interim Order also required Trump International to undertake certain

studies pursuant to 40 C.F.R. § 125.86. (Attachment 4, Agreed Interim Order {[ 14).

ANSWER: Attachment 4 to Plaintiff-Intervenors Amended Complaint speaks for itself,
and no answer is required.

72. Trump International has undertaken some of the studies required under the Agreed

Interim Order.

17
ANSWER: 401 North admits the allegations in paragraph No. 72.

2. In conducting those studies, Trump International or consultants retained on its

behalf relied on its previously-submitted DMRs for flow rate data.

ANSWER: 401 North admits the allegations in paragraph No. 73.

74. In review, Trump International has neither (1) performed studies required by

Special Condition 8 of the 2013 NPDES Permit, nor (2) undertaken the work necessary to

minimize damage to aquatic life from its intake structures, nor (3) correctly reported flow

monitoring conditions of the 2013 NPDES Permit, nor (4) complied with the requirements for new

facilities under 40 C.F.R. §125.80 et seq.

ANSWER: 401 North denies the allegations in paragraph No. 74.

75. Therefore, Trump International has violated and will continue to violate the 2013

NPDES Permit, Section 301(a) of the federal Clean Water Act, 33 U.S.C. § 1311(a), 40 CFR

§122.21(r), 40 CFR 125 subpart I, and 35 Ill. Adm. Code Subpart C, at Section 306.201.

ANSWER: 401 North denies the allegations in paragraph No. 75.

76. On August 13, 2018, the State of Illinois filed a COMPLAINT FOR INJUNCTIVE

RELIEF AND CIVIL PENALTIES (the “State Complaint”). Plaintiff-Intervenor hereby

incorporates the allegations of the State Complaint to the extent those allegations are not

inconsistent with the allegations set forth herein.

ANSWER: 401 North denies that the Illinois Code of Civil Procedure allows Plaintiff-
Intervenors to reallege the entire Complaint filed by the Illinois Attorney General on behalf of
Illinois EPA. Pursuant to 735 ILCS 5/2-610, pleadings shall be specific.

77. On September 18, 2023, the State of Illinois Filed a SECOND AMENDED

COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES (the “State Amended

18
Complaint’). Plaintiff-Intervenor hereby incorporates the allegations of the State Amended

Complaint to the extent those allegations are not inconsistent with the allegations set forth herein.

ANSWER: 401 North denies that the Illinois Code of Civil Procedure allows Plaintiff-
Intervenors to reallege the entire Second Amended Complaint filed by the Illinois Attorney
General on behalfof Illinois EPA. Pursuant to 735 ILCS 5/2-610, pleadings shall be specific.

COUNT I- CLEAN WATER ACT

78. Plaintiff-Intervenors repeat and reallege paragraphs 1 through 77 as though set forth

here.

ANSWER: This Court dismissed Count I of Plaintiff-Intervenors’ Complaint on
November 6, 2019, which is identical to this Court I. 401 North is concurrently filing a Motion to
Dismiss Counts I and III, and thus, no answer is required.

79. At all times relevant to this complaint, Trump International has discharged and

ontinues to “discharge” heated water; heated water is a “pollutant” within the meaning of Section

502 of the CWA, 33 U.S.C. § 1362, into the Chicago River.

80. Trump International’s pollutant discharges are discharges from a “point source”

into “navigable waters” of the United States within the meaning of Section 502 of the CWA, 33

U.S.C. § 1362.

81. The Chicago River is a “navigable water” within the meaning of Section 502(7) of

the CWA, 33 U.S.C. § 1362(7).

19
82. The citizen-suit provision of the Clean Water Act, 33 U.S.C. § 1365, provides that

“any citizen may commence a civil action * * * against any person * * * alleged to be in violation

of [ ] an effluent standard or limitation under this chapter,” including any limitations imposed by

a NPDES permit. 33 U.S.C. § 1365(a); § 1311(a) (compliance with “effluent limitations” defined

as including requirement to comply with 33 U.S.C. § 1342); § 1342 (requiring compliance with

conditions imposed in NPDES permit).

83. Plaintiff-Intervenors are “citizen[s],” because they are “persons having an interest

which is or may be adversely affected” by Trump International’s violations of the Clean Water

Act. 33 U.S.C. §§ 1365(a) and 1365(g).

84. Plaintiff-Intervenors satisfied the applicable notice requirements of 33 U.S.C. §

1365(b)(1).

85. Trump International has failed and continues to fail to comply with 40 CFR

122.21(r) and 40 CFR 125.84, which set out permit application and operation requirements related

to cooling water intakes at new facilities.

20
86. Since it opened in 2008 and began operation of its cooling water intake structure,

Trump International has been and continues to violate 35 Ill. Adm. Code § 306.201, which is

independently applicable and incorporated into the 2013 NPDES Permit through Special Condition

27 and which requires new water intake structures to “be so designed as to minimize harm to fish

and to other aquatic organisms.” Id.

87. Defendant has violated its NPDES permit by failing to meet the conditions of the

2013 NPDES Permit and continues to operate the facilities that caused those violations without

complying with the conditions of the permit it received. Unless enjoined, it may violate NPDES

permits that it is issued in the future with regard to the operation of Trump Tower.

88. Each day in which Trump International has discharged in violation of its 2013

NPDES Permit, the CWA, or state or federal regulations promulgated thereunder constitutes a

violation of Section 301 of the CWA, 33 U.S.C. § 1311, and is actionable under Section 505 of

the CWA, 33 U.S.C. § 1365(a)(1).

89. Pursuant to Sections 309 and 505 of the CWA, 33 U.S.C. §§ 1319 and 1365, and

40 C.F.R. §§ 19.1-19.4, Trump International is liable for injunctive relief and civil penalties of up

to $37,500 per day for each of violations occurring from January 12, 2009 through November 2,

21
2015 and up to $52,414 per day for each of violations occurring after November 2, 2015. 33 U.S.C.

§§ 1311, 1365; 40 C-F.R. §§ 19.1-19.4.

COUNT II — PUBLIC NUISANCE

90. Plaintiff-Intervenors repeat and reallege paragraphs 1 through 89 as though set forth

here.

ANSWER: 401 North realleges and incorporates by reference its answers to paragraphs
1 through 77 as its answers to paragraph No. 90 of this Count II. Paragraph Nos. 78 through 89 are
subject to the Court’s order granting the dismissal of same and require no answer.

91. A public nuisance is “virtually any form of annoyance or inconvenience interfering

with common public rights.” City of Chicago et al. v. Beretta U.S.A. Corp. et al., 213 Ill. 2d 351,

365 (2004) (adopting definition of Restatement of Torts). See also Restatement (Second) of Torts

§ 821B (1979) (“A public nuisance is an unreasonable interference with a right common to the

general public.”).

ANSWER: Paragraph No. 91 quotes legal citations and contains no allegations against
401 North requiring admission, denial or other response.

92. Under Illinois law, “[iJt is a public nuisance * * * to corrupt or render unwholesome

or impure the water of a * * * river * * * to the injury or prejudice of others.” 720 ILCS 5/47-5(3)

(West 2018).

ANSWER: Paragraph No. 92 cites a portion of a statutory definition and contains no
allegations against 401 North requiring admission, denial or other response.

93. Members of Plaintiff-Intervenors’ organization, as all members of the public, have

a right to fish, canoe and otherwise recreate in the Chicago River, which is a navigable public

water of the State over which Defendant does not have ownership rights.

22
ANSWER: 401 North admits that the Chicago River is a navigable public river of the
State of Illinois, and that 401 North does not have own the Chicago River. The remaining
allegations are not directed to 401 North, but to the extent they are construed to do so, 401 North
denies.

94. By operating a 20 MGP intake and discharging for years in violation of permit

conditions and regulations designed to protect aquatic life, and by continuing to operate said intake

without obtaining permits containing appropriate limits or minimizing its impact on aquatic life,

Defendant has substantially and unreasonably interfered in Plaintiff-Intervenors right to fish and

otherwise recreate in

Case Info

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HALL, SOPHIA Track Judge’s New Case

Case No.

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Document Filed Date

November 02, 2023

Case Filing Date

August 13, 2018

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Answer: PEOPLE OF THE STATE OF IL vs 401 NORTH WABASH VENTURE,

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