FIFTH THIRD NOTIFIED OF CLEAN WATER ACT VIOLATIONS

[Editor's note: We sent this notice of Clean Water Act violations to Fifth Third Bank, one of the owners of the Berkey & Gay project a.k.a. "The Boardwalk". We sent similar notices to the developer 940 Monroe L.L.C., one of the major contractors Dykema Excavators Inc., the City of Grand Rapids, and others at the same time.]

August 10, 2004

Mr. George A. Schaefer, Jr.
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263

Re: Notice of Intent to Sue for Violations of the Clean Water Act

Dear Mr. Schaeffer:

This is a notice to you that the Local Area Watch (“LAW”) believes that the renovation and operation of the Boardwalk residential-commercial complex in Grand Rapids, Michigan, which is owned and operated by Fifth Third Bancorp through its development company 940 Monroe L.L.C. (collectively, “FTB”), have resulted and continue to result in numerous discharges of pollutants into the Grand River watershed in violation of the Clean Water Act, 33 U.S.C. Sections 1251 et seq. (“CWA”).

Specifically, FTB has violated the CWA by discharging from numerous point sources in the immediate vicinity of the Boardwalk and the nearby Monroe Avenue Water Filtration Plant pollutants into the Grand River watershed without having either applied for or obtained the necessary National Pollutant Discharge Elimination System (“NPDES”) permits.

This letter, pursuant to 33 U.S.C. Sections 1365(a) and (b) of the CWA, is giving FTB notice of LAW’s intent to file suit to address the violations of the CWA as described in this letter.

1. The Clean Water Act requires NPDES permits for discharges of pollutants from point sources into navigable waters.

Under the Clean Water Act it is unlawful to discharge pollutants from a “point source” into navigable waters without obtaining and complying with a permit governing the quantity and quality of discharges. Trustees for Alaska v. EPA, 749 F.2d 549, 553 (CA9, 1984). The Clean Water Act prohibits “the discharge of any pollutants by any person” except in compliance with, among other provisions, the NPDES permitting requirements of the Act. 33 U.S.C. Section 1311(a). This includes discharges of polluted storm water. 33 U.S.C. Section 1342(p). The duty to apply for a permit lies with ‘[a]ny person who discharges or proposes to discharge pollutants …”. 40 C.F.R. Section 122.21(a).

A discharge of pollutants is “any addition of any pollutant to navigable waters from any point source”. 33 U.S.C. Section 1362(12). Pollutants includes, among other things, hazardous substances, industrial wastes, rock, sand, soil, and dirt discharged into water. 33 U.S.C. Section 1362(6). A point source is “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged”. 33 U.S.C. Section 1362(14). “Navigable waters” means “the waters of the United States”. 33 U.S.C. Section 1362(7).

FTB owns and operates the Boardwalk building, which it renovated for residential and commercial use from November 1999 through March 2001 and thereafter put into service. The Boardwalk is located at 940 Monroe Avenue, N.W., in downtown Grand Rapids, Michigan. The site of the Boardwalk covers about 4.2 acres and fronts about 700 feet of the Grand River. New storm water sewers on or immediately adjacent to the Boardwalk site empty into the Grand River. The groundwater beneath the Boardwalk is perched atop bedrock beginning at depths of ten to twelve feet and either flows directly into the Grand River or into its tributary, Coldbrook Creek, about 1/8 of mile to the north. Furthermore, the Grand River floods seasonally, saturating and then draining the water-bearing strata beneath the Boardwalk. The Grand River empties into Lake Michigan, about 30 miles to the west.

Two environmental surveys of the Boardwalk site were commissioned by FTB in November 1999. FTB received the results of these surveys in December 1999. Extensive testing of the site’s soil established that it was severely contaminated with at least 26 hazardous substances, including lead, arsenic, mercury, and several poly-nuclear aromatic and volatile organic compounds. Most of these contaminants were present at toxic concentrations, pursuant to the State of Michigan’s standard for safe direct contact. Lead and arsenic contaminated the soil at levels as much as three times the toxic limit. Benzo(A)pyrene was found to exceed the toxic limit by 17,000%. Furthermore, several hazardous substances were found in concentrations far above the State of Michigan’s safe drinking water standards: Lead, chromium, mercury, zinc, naphthalene, phenanthrene, and trichloroethene. Phenanthrene exceeded the standard by 3,300%; trichloroethene, a volatile organic compound, by 78,000%; and lead by 180,000%.

Because of the pervasiveness of these contaminants, the Boardwalk’s soil constituted hazardous waste subject to regulation under Michigan’s Hazardous Waste Act, MCL Sections 324.11101 et seq., and the federal Solid Waste Disposal Act, 42 U.S.C. Sections 6901 et seq. Consequently, the Boardwalk’s soil is a pollutant under the CWA by virtue of both its form (i.e., dirt) and hazardous content. FTB’s renovation and operation of the Boardwalk have discharged, continue to discharge, and threaten to discharge pollutants through point sources into the Grand River without having secured an NPDES permit. Neither FTB, nor any agent on its behalf, has ever applied for an NPDES permit to govern the discharge of the Boardwalk’s soil, demolition rubble, and construction waste into the Grand River. No authority has ever issued any such NPDES permit to FTB or its agents.

2. FTB has and continues to discharge pollutants from point sources into navigable waters without the required NPDES permits in violation of the CWA.

Beginning in November 1999, FTB’s demolition, excavation, and construction activities at the Boardwalk site produced pollutants that were subsequently, and continue to be, discharged from point sources, including storm sewers, culverts, and other drains, into the Grand River. LAW will allege in its complaint that FTB required NPDES permits for these actual and potential discharges at the outset of construction activity and everyday thereafter its failure to do so, or on at least 1,659 occasions. LAW will also allege that the required NPDES permits included: [1] Two permits for storm water discharges from the sites of the Boardwalk and the Filtration Plant (see 33 U.S.C. Section 1342(p)(4)(A)); and [2] two permits for discharges of pollutants also from these sites (see 33 U.S.C. Section 1311(a)). Therefore, FTB has violated its duty to apply for and receive at least four NPDES permits on at least 6,636 occasions.

Furthermore, FTB continues to discharge pollutants in the form of the Boardwalk’s contaminated soil and other demolition and construction waste into the Grand River watershed in the following manner:

[1] The hazardous substances described in the previous section and other pollutants are continuously discharging into the Grand River watershed through a culvert beneath the Boardwalk’s parking ramp where FTB’s agents stated under oath that they disposed of the contaminated soil generated during the Boardwalk’s renovation – thus, resulting in at least 1,659 unlawful discharges under the CWA;

[2] The same hazardous substances and other pollutants are discharging into the Grand River through nineteen storm water drains located on the site of the Boardwalk or immediately adjacent to it as a consequence of run-off during 250 rain events in excess of 0.1 inches from contaminated soil generated during the Boardwalk’s renovation and stored on-site – thus, resulting in at least 4,750 unlawful discharges under the CWA;

[3] The same hazardous substances and other pollutants are continuously discharging into the Grand River watershed through the drains FTB’s agents drilled through the bottom a large concrete reservoir at the Filtration Plant into which, according to statements FTB’s agents made to the Michigan Department of Environmental Quality, they disposed of contaminated soil excavated from the Boardwalk site during its renovation – thus, resulting in at least 1,659 unlawful discharges under the CWA;

[4] The same hazardous substances and other pollutants are discharging into the Grand River through a storm water drain located at the site of the Filtration Plant as a consequence of run-off during 250 rain events in excess of 0.1 inches from the waste FTB’s agents dumped into the Filtration Plant reservoir – thus, resulting in at least 250 unlawful discharges under the CWA;

[5] The same hazardous substances and other pollutants are discharging into the Grand River through numerous storm water drains located along the public streets FTB’s agents used to transport (for off-site disposal) the contaminated soil and other waste they generated at the Boardwallk site during its renovation; the discharges are the consequence of run-off from transport spillage during 250 rain events in excess of 0.1 inches – so far resulting in an undetermined number of unlawful discharges under the CWA.

Note that pollutants contaminating storm water become lodged at the bottom of storm water drains, below the level of the lateral connecting the drain to the Grand River, and remain there for years (or until cleaned) to repeatedly discharge into the lateral during rain events. Because none of these actual or proposed discharges are in conformance with an NPDES permit, LAW will allege in its complaint that FTB discharged pollutants into the Grand River watershed on at least 8,318 occasions in violation of the CWA. 33 U.S.C. Sections 1311(a).

3. Notice of intent to sue FTB for violations of the CWA.

This notice covers all violations occurring from November 1999 to the present, as well as any violations of the type described above that occur after this notice. To date, LAW places FTB on notice of at least 14,954 violations of the CWA within the watershed of the Grand River. Upon filing the noticed lawsuit, LAW will seek declaratory and injunctive relief to remediate past violations and prevent further violations of the Act pursuant to 33 U.S.C. Sections 1365(a) and (d), and other relief as permitted by law. In addition to the declaratory and injunctive relief, LAW will seek an order for the payment of civil penalties. Each separate violation of the CWA subjects FTB to a penalty of up to $27,500 per day per violation. 33 U.S.C. Section 1319(d); 40 C.F.R. Section 19.4. Finally, LAW will seek recovery of its costs and fees, including attorneys’ fees. 33 U.S.C. Section 1365(d).

LAW intends to sue on behalf of itself and its members. It intends to file suit 60 days from the date of this letter. See 33 U.S.C. Section 1365(b)(1)(a). During the 60-day notice period, LAW would be willing to discuss effective remedies for the violations noted in this letter. However, if you wish to pursue such discussions in the absence of litigation, we suggest that initiate those discussions as soon as possible. We do not intend to delay the filing of a complaint if discussions are continuing when the notice period ends.

Sincerely,

Wm Q. Tingley III
Executive Director