DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN

UNITED STATES OF AMERICA,

Plaintiff

CIVIL No.   1984-104

GOVERNMENT of the VIRGIN ISLANDS

Defendant

BRIEF ON MOTION TO INTERVENE

      Now comes Susan K. Wolterbeek, Pro Se, being duly sworn, and hereby states as follows: Intervenor is a Citizen of the United States and a resident of St. Thomas, United States  Virgin Islands. An Affidavit in Support of Motion to Intervene is included with this filing.  Intervenor is bringing this Motion to Intervene as of Right, under Rule 24 (a)(1) of the  Federal Rules of Civil Procedure (F.R.C.P.). Citizens are given an unconditional right to  intervene in this case by federal statute,  33 United States Code (U.S.C.) 1365 (b)(1)(B), as (the  parties would contend that) the Administrator has commenced and is diligently prosecuting a  civil action in a court of the United States.

 Intervenor has an Interest that is Significantly Protectable

 In addition, Intervention is as of right under F.R.C.P. Rule 24 (a)(2). As a resident of the US  Virgin Islands, Intervenor has a compelling interest in the continued health of, not pollution of, USVI territorial waters. As stated in the accompanying Affidavit in Support of Motion to  Intervene, [Affidavit], Intervenor moved to St. Thomas in part out of deep affection for and  commitment to Coral and Hawksbill and Green Sea Turtles, endangered and threatened  species living in the coastal waters directly surrounding the U.S. Virgin Islands. Intervenor  snorkels and swims in USVI territorial waters.

It  is a scientific fact that a small drop of fecal matter can contain millions of  microorganisms of many types, some of which are pathogenic.       Microbial pathogens in raw or inadequately treated sewage can cause illnesses ranging from  temporary stomach cramps to life-threatening conditions such as inflammation of the heart.  Cholera, Typhus and SARS can cause outbreaks and death, and many of the other diseases can  debilitate people severely, such as Hepatitis A,B, Giardia Lambia, Gastroenteritis, Poliovirus,  and Poliomyelitis.

There has been a recent outbreak of Cholera in Haiti, sickening 250,000, and killing 5,000.  Apparently the outbreak was caused by a U.N. facility having sanitation problems [Exhibit 13].  This dumping of raw sewage is being done willfully, and has been for 27 years. If people fall ill,  it will have a devastating effect on the people, tourism and our economy. If we have an outbreak  of cholera or typhus, our economy will fail as well as our bodies.

Citizens have a right to enjoy our coastal waters, not to swim in raw sewage, without even  being given legal warning of these bypasses. The Affidavit reveals through 150 VIWMA Non-Compliance Reports and newspaper articles at least 83 full days of bypassing raw sewage since  this Court’s Order of 3/18/10  [Exhibits 2-5, 15-18, 23-25].

The Affidavit details VIWMA’s failure to abide by the Territorial Pollutant Discharge  Elimination System (TPDES) Permit, and this Honorable Court’s Order by not publishing  required Public Notices before, during, and after bypasses, or posting warnings on beaches. Thus  Citizens have no knowledge if or when VIWMA is dumping raw sewage, and whether it is even  safe to go swimming. Intervenor therefore has an interest that is “significantly protectable”.   Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971).

 The Motion Is Timely

 This motion is timely, because this an ongoing case, with VIWMA to supply this Honorable  Court with ongoing data in regard to the wastewater systems, and a plan to buy, replace and  maintain the pumps.  The Court has established an emergency fund to purchase or repair pumps  on an emergency basis with the goal that no further bypasses of raw sewage will occur, and has  held a hearing on these issues on May 11, 2011.

However, neither party has fully apprised this Honorable Court of the massive 83 days of  bypasses that VIWMA has been committing since the Order of March 18, 2010.  Exhibit 2 is a Summary of the 186 Non-Compliance Reports provided by the EPA enumerating  raw sewage discharges by VIWMA from1/1/10 -3/23/11. Defendant’s Exhibit C stated that it  included all St. Croix bypasses of raw sewage until April, 2011, yet there were several major  bypasses in March which were not included in Exhibit C.

If the rate of flow is the same as last year, these 83 days of bypasses probably exceed the  bypasses which were the subject of the emergency motion on March 11, 2010. It is therefore  important and timely to provide this Honorable Court with the full truth concerning the many  ongoing bypasses of raw sewage over the past year as well as the present condition of the pumps  and the systems which continue to break down regularly.

When determining timeliness, the Court examines the prejudice that the delay of the  intervention will cause the current parties to the litigation. Mountain Top, Mountain Top Condo.  Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 at 369-70 (3d Cir. 1995).  In the case at hand Intervention will not cause delay. To the contrary, this information will be  useful to the Court to render a decision. Even if there is any question as to timeliness,  as the Court stated in Mountaintop, when “intervention is of right, the would-be intervenor may  be seriously harmed if he is not permitted to intervene, [thus] courts should be reluctant to  dismiss a request for intervention [of right] as untimely.” Mountain Top, 72 F.3d at 368.

 The Existing Parties are not adequately representing or protecting Citizens’ Interests.

 Disposing of this action will impair or impede Intervenor’s ability to protect her interest in  swimming and snorkeling, and seeing living endangered species, as well as keeping the  territorial waters unpolluted by raw sewage. VIWMA has continued to pump many, many more millions of gallons of raw sewage into USVI coastal waters since this Honorable Court’s Order  of March 18, 2010, and the EPA has allowed these illegal actions, and will not file for Contempt  or Receivership [Exhibits 6-7, 11]. The EPA has apparently made no plans to address our polluted waters with the National Oceanic and Atmospheric Administration (NOAA), the agency  responsible for protecting the territorial waters of the U.S. Virgin Islands, and who has spent  millions of dollars on projects to protect and re-colonize Corals.

Further, as detailed in the accompanying Affidavit, VIWMA has not followed specific  Court Orders in regard to the Figtree and Cancryn Pump Stations, nor maintained the requisite  back-up pumps for St. Croix.

As detailed in the accompanying Affidavit, although Intervenor has asked the EPA  Region 2  Administrator several times, in person and by letters, to stop VIWMA from continuing  to dump the raw sewage, and implored the Region 2 attorneys during weekly conference calls for  the past month to file for Contempt and Receivership, [Exhibits 6,7,10,11], the EPA will not take  such action. For the foregoing reasons, the existing parties are not adequately representing or  protecting Citizens’ interests.

As the United States Supreme Court stated, “[t]he requirement of the Rule is satisfied if the  applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making  that showing should be treated as minimal.” Trbovich v. United Mine Workers, 404 U.S. 528,  538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). The most important factor in  determining adequacy of representation is how the interest of the absentee compares with the  interest of the present parties. If the interest of the absentee is not represented at all, or if all  existing parties are adverse to him, as in the case at hand, then he is not adequately represented.

 This Intervention may be commenced Immediately

 This Motion to Intervene, Complaint in Intervention, and Motion for an Expedited  Hearing  on Contempt and Receivership may be brought immediately, without the normal 60 day notice,  pursuant to 33 U.S.C. 1365 (b)(2) because VIWMA is in violation of  33 U.S.C sections 1316  and/or 1317(a), [as well as this Honorable Court’s Orders] by committing illegal discharges in  violation of the effluent standard of performance under the Clean Water Act.

Therefore, since this motion is timely, Intervenor may Intervene as a matter of right  pursuant to FRCP Rule 24 (a)(1)  and 33 United States Code (U.S.C.) 1365 (b)(1)(B) as well as  under F.R.C.P. Rule 24 (a)(2). In addition, Intervention is further appropriate through F.R.C.P.  Rule 24 (b)(1)(B) because Intervenor has compelling facts to offer the Court, in regard to the 150 Non-Compliance Reports since 3/18/10, signed by VIWMA and provided by the EPA,  along with the Summary of said reports.

Wherefore, Intervenor hereby requests the following relief of this Honorable Court:

1. That the within Motion to Intervene is granted, and Susan K. Wolterbeek is permitted to be a party to this case, as of Right.

2. That in light of  the Summary of Non-Compliance Reports and newspaper articles submitted by Intervenor as Exhibits, which reveal 83 days of raw sewage bypasses, Intervenor’s Motion, Pleadings and evidence are accepted, and Intervenor may proceed in this case immediately.

3. Any further relief that is just and equitable.

Respectfully submitted,

_______________________

Susan K. Wolterbeek, Pro Se

PO Box 306658

St. Thomas, VI 00803

(340) 714-2233

susan@GreenerVI.org

Territory of the US Virgin Islands

District of St. Thomas and St. John