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

Susan K. Wolterbeek, Pro Se, Intervenor

         COMPLAINT IN INTERVENTION

Now comes Susan K. Wolterbeek, Pro Se, being duly sworn, and hereby states as follows:

I am a Citizen of the United States and a resident of  St. Thomas, United States Virgin  Islands.  This Complaint in Intervention is filed against the Government of the Virgin Islands and  the U.S. Environmental Protection Agency (EPA).

 JURISDICTION AND VENUE

This matter was brought originally by the EPA pursuant to the Clean Water Act, Title 33 United States Code (U.S.C.) §1251 et seq. This Honorable Court has jurisdiction over this matter pursuant to Title 33 U.S.C. §1365(a). In addition, pursuant to Title 16 U.S.C. Chapter 35 §1540(c) this Honorable Court has jurisdiction over matters in the Territory concerning the Endangered Species Act.

Intervention in this case is as of right, under Rule 24 (a)(1) of the Federal Rules of Civil Procedure (F.R.C.P.), as Citizens are given an unconditional right to intervene in this case by federal statutes,  Title 33 United States Code (U.S.C.) §1365 (b)(1)(B) and Title 16 U.S.C.  §1540(g)(1)(a). Further, Intervention is as of right under F.R.C.P. Rule 24 (a)(2).

Venue is proper pursuant to Title 33 U.S.C. §1319(b) and Title 16 U.S.C.§1540(g)(3)(A), as the violations occurred in the district of the U.S. Virgin Islands and any suit under these sections may be brought in the judicial district in which the violation occurs.

 PARTIES

 The parties to this case are the United States, represented by the Environmental  Protection Agency (EPA) and the U.S. Department of Justice, and the Government of the Virgin  Islands, joined by Virgin Islands Waste Management (VIWMA).

Intervenor is Susan K.  Wolterbeek, a United States Citizen and Resident of St. Thomas, Pro Se, P.O. Box 306658, St.  Thomas, VI 00803.

 NATURE OF ACTION

 VIWMA has illegally dumped raw sewage into USVI coastal waters, on and off, for 27  years. VIWMA dumped 50 million gallons of raw sewage January through March, 2010. Since  the 3/18/10 Court Order, Citizen Intervenor has repeatedly given EPA Region 2 officials  documentary proof  of VIWMA’s continued, willful refusal to follow federal law and this  Honorable Court’s orders. The EPA officials ignored Intervenor and the evidence, and would not  even investigate whether VIWMA had purchased Court Ordered pumps, stopped bypassing, or  gave requisite Public Notice of the bypassing.

Since the 3/18/10 Court Order, VIWMA has failed to buy the requisite pumps, has  continued, for over 98+ days, to dump many more millions of gallons of raw sewage into USVI  coastal waters, in addition to an ongoing raw sewage bypass for the past 34 days, and VIWMA  still will not give required Public Notice of the dumpings, thereby risking the health of those who  are most vulnerable. Regardless, the EPA would not and will not move for Contempt and  Receivership.

While the local government continues, daily, to pollute USVI waters with raw sewage,  endangering the health of humans, the marine ecosystem and endangered species, the practical  and appropriate solution is to place VIWMA in Receivership. With a private waste management  company running VIWMA and the federal agencies joined whose focus is to protect and  revitalize our coastal waters, this Honorable Court can protect Citizens, tourists, the marine  environment and the endangered species who live there.

 HISTORY OF VI WASTE MANAGEMENT’S VIOLATING COURT ORDERSAND FEDERAL LAWS AND THE EPA’S CONTINUED INABILITY TO STOP THE DUMPING

 In 1985 the parties entered into a consent decree, “which was thereafter and  immediately ignored for many years by the Government of the Virgin Islands” [as stated in  Court Order dated 9/27/2001].

In the 1990 Consent Order, DPNR and DPW, the predecessor of VIWMA, were to have  developed a comprehensive program for the prevention, control, and abatement of all pollution  in the Territory, from that time forward, so that these emergency dumpings of raw sewage would  never happen again. Based on the findings of facts and the conclusions of law, the 1990 Consent  Order determined that the numerous deficiencies plaguing the waste treatment facility and the  plethora of violations generated thereby unreasonably expose the public and the environment to  substantial endangerment.

In 1996 this Court approved an Amended Consent Decree in which the Government of  the Virgin Islands failed to prevent the nearly complete and total breakdown of the St. Croix  waste water treatment facilities by the end of 1999, which resulted in millions upon millions of  gallons of raw sewage being pumped directly into the Caribbean Sea.

In 2001, this Honorable Court stated:

“…despite the passage of nearly one year since the last hearing in October 2000, the Government of the Virgin Islands continues brazenly to ignore this Court’s orders, and, as a result, it appears that the Government of the Virgin Islands has allowed various St. Croix facilities once again to fall into a state of dismal disrepair and desuetude.”

On March 31, 2011 this Honorable Court stated:

…It is equally hard to appreciate when the bypass of raw sewage seems avoidable with some degree of planning… Remarkably, the discharge in this case, which exponentially exceeds any other, was undertaken deliberately, unabated and in some instances without giving notice by the very entity empowered to seek punitive measures against any other person or private entity undertaking such acts.  When questioned on May 11, 2011 for the reason VIWMA had not purchased the  Court Ordered pumps a year ago, Executive Director Cornwall testified that funding is not the  problem, it is a failure of management.

Clearly, over these decades, the Government of the US Virgin Islands is contemptuous  of, or incapable of complying with,  Court Orders and the Clean Water Act. Further, neither  the Department of Planning and Natural Resources [DPNR] nor the EPA have been competent  at enforcing the Clean Water Act, and instead have continued their ineffectual course of action of  occasionally levying fines, instead of seeking punitive sanctions and Receivership, thus enabling  VIWMA to continue fouling USVI waters.

 PUMPING MILLIONS OF GALLONS OF RAW SEWAGE INTO COASTAL WATERS IS DANGEROUS TO HUMAN HEALTH

  Ever since 1854, when sewage-contaminated water at the Broad Street pump caused  London’s worst cholera epidemic, it has been scientifically proven that discharges of untreated  sewage can cause disease and even death. A small drop of fecal matter can contain millions of  microorganisms of many types, some of which are pathogenic.  See the articles on Haiti’s  Cholera Epidemic, which has already sickened 320,000 people and caused 5,300 deaths,  apparently due to bad sanitation at a U.N. facility [Exhibits 13, 27].

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 enlarged heart, Hepatitis A,B, Giardia Lambia,  Gastroenteritis, Poliovirus, Poliomyelitis. We must stop this dumping of raw sewage now;  the Virgin Islands’ people, marine life, economy and tourism are all at risk, or already suffering.

VIWMA HAS DUMPED RAW SEWAGE INTO VI COASTAL WATERS FOR 98+ DAYS SINCE LAST YEAR’S COURT ORDER, IN VIOLATION OF THE CLEAN WATER ACT

Title 33 United States Code (U.S.C.) §1251 et seq. requires that VIWMA follow the TPDES Permit issued by DPNR and regulated by the EPA. This statute and permit state that it isillegal to dump raw sewage into coastal waters.

After last year’s Emergency Court Order of 3/18/10, VIWMA has continued to dump raw  sewage into VI coastal waters for at least an additional 98 days, 24 hours a day, as shown by  VIWMA’s own reports and newspaper articles. Exhibit 2 is a summary of  VIWMA’s 186 Non-Compliance Reports from 1/1/10 through 3/23/11, furnished to Intervenor by the EPA VI  Coordinator, showing 77 days of raw sewage bypasses since 3/18/10. [The 186 Non-Compliance  Reports themselves, Exhibit 1, was not filed with the Court, at the directive of the Supervising  Clerk, due to the size of the exhibit, unless and until this Honorable Court so requests.]

15 more days of raw sewage bypasses are summarized in Exhibit 26.  On May 12, 2011,  the EPA furnished Intervenor with Non-Compliance Reports showing 8 days of raw sewage  bypasses from November, 2010. Summarized also are 7+ days of bypasses from April-May  2011, as shown in EPA’s Exhibit 3, Document #462-3.  An additional 6 days of bypasses are  reported in newspaper articles for April 27-29, 2010 and April 27-29, 2011, as shown in Exhibits  3-5, which bypasses were not reported in VIWMA’s Non-Compliance Reports given by the EPA  to Intervenor.

Several of VIWMA’s Non-Compliance Reports state “ONGOING”, or “n/a”, without start and stop dates, for bypasses at NaNa Gut and Weymouth Rhymer Pump Stations, [Exhibits  17 and 18], as well as the many pump stations off-line during Hurricane Earl, as reflected in  Exhibit 2. These ongoing bypasses were counted as only one day each, thus the actual number of  raw sewage bypasses since 3/18/10 will be significantly higher than 98 days.    Indeed, there is  an Ongoing bypass which has been occurring at Figtree Pump Station since May 3, 2011,  according to Mr. Modesto’s Declaration filed May 26, 2011. Thus, as of June 6, 2011,  VIWMA  has caused  at least 132 days of raw sewage bypasses since last year’s emergency order which  was issued by this Honorable Court to stop the bypasses.

 INTERVENOR HAS REPEATEDLY GIVEN THE EPA DOCUMENTARY PROOF OF VIWMA’S CONTEMPT, BUT THE EPA WILL NOT ENFORCE COURT ORDERS

Intervenor has been writing to the EPA, to stop VIWMA’s dumping raw sewage, since February 6, 2010. After last year’s 3-18-10 Court Order Intervenor wrote to Mr. Casey, EPA VI Coordinator on April 25, 2010, and to Carl Soderberg, Division Director, USEPA Region 2, Caribbean Environmental Protection Division on May 4, 2010, because it appeared that VIWMA was violating the 3-18-10 Court Order and continuing to dump raw sewage. [Exhibits 28, 29].

Upon consultation with various Bureaus at the National Oceanic and Atmospheric Administration [NOAA], Intervenor wrote to Mr. Thomas Bigford, Habitat Division (F/HC2) on April 30, 2010. He responded that he was in touch with Region 2 and would proceed according to Region 2’s lead [Exhibit 30].  Ever since, Intervenor has been asking the EPA officials what action they have taken under the Endangered Species Act, why they have not stopped the dumping, and why they will not file a Motion for Contempt and seek strong sanctions.

Intervenor met with Regional Administrator Judith Enck on May 6, 2010, who said she understood the urgency and would focus on VIWMA. Intervenor wrote Administrator Enck a 15 page letter/legal analysis on May 17^th, citing the many ways VIWMA was continuing to violate the Honorable Court’s Orders and the Clean Water Act. Intervenor detailed how VIWMA, DPNR (and its subdivisions) as well as the EPA were all violating the Endangered Species Act, [ESA] and that the EPA was required, under President Clinton’s Executive Order 13089  and the ESA , to contact NOAA and begin the evaluation process of the affected waters. Intervenor urged the Administrator to stop allowing VIWMA to continue to dump raw sewage in our swimming waters, and to file a Motion for Contempt. [Exhibit 6]  Administrator Enck gave the following response:

From: Enck.Judith@epamail.epa.gov [mailto:Enck.Judith@epamail.epa.gov]
Sent: Monday, May 17, 2010 12:37PM                                                                    Subject: Re: Citizen’s Suit, Human health of Triathaloners, Endangered Species Act

susan: I am looking into the issue of sewage discharges on vi.
Judith Enck Regional Administrator

The EPA did nothing, beyond filing documents, without a motion, in August, 2010. On February 5, 2011, Intervenor read another article in the VI Daily News stating that VIWMA was again pumping raw sewage over a coral reef [Exhibit 19]. Intervenor wrote again to Regional Administrator Enck on March 2, 2011, which was published in the VI Daily News on March 9, 2011. [Exhibit 7].  Administrator Enck again refused to respond or acknowledge tangible health and safety concerns about the intentional dumping of millions of gallons of raw sewage into waters where people swim and snorkel and endangered species live. Intervenor finally went over Region 2, and spoke with Vincent Bowen of the EPA home office in Washington, who then got Region 2 to conference call with Intervenor in late March, 2011.

Despite Intervenor’s continually asking Region 2 officials for basic information, such as the start and stop dates of raw sewage bypasses and the quantity of raw sewage VIWMA has dumped into VI coastal waters in the past year, [Exhibits 8-12] these EPA officials, who are sworn to uphold federal laws, will not give Intervenor any information beyond VIWMA’s Non-Compliance Reports, which data the EPA states it has not verified. [EPA Exhibits 1-4].  This statement that the EPA has not verified any of these bypasses reveals that the EPA is not regulating VIWMA.

Many of the Non-Compliance Reports are themselves non-compliant with the basic specifications of the TPDES Permit, and should not have been accepted by DPNR or the EPA. These reports are required to have start and stop dates of raw sewage bypasses and quantity/rate of flow.  Nonetheless, several of these reports say ONGOING or N/A for the amount of time bypassing, and none of the reports show rate of flow [Exhibits 2, 15-18, EPA Exhibit 3, Document 462-3, Page 28.].

If the truth is that the EPA does not know how many gallons of raw sewage were dumped since the last Court Order, and the agency does not know how long the “Ongoing”  bypasses lasted during the past year, that Admission is further proof  of the EPA’s failure to regulate VIWMA and DPNR.

Further, even though Intervenor had furnished the EPA with Exhibit 2 and Exhibits 6-9, before the EPA filed its 4/11/11 submissions, that agency still grossly understated the amount of raw sewage bypasses to this Honorable Court [Exhibit 10]. Now, the EPA has finally made a chart of the bypasses, but the EPA’s charts leave out some major bypasses, such as a 6 day 6 hour bypass 2/24/11-3/2/11 at Figtree near Hovensa for replacement of Force Main [Exhibit 24], and the 4/24/11-4/29/11 5 day Figtree bypass documented in EPA’s Exhibit 3, 462-3 page 24.

 DUMPING RAW SEWAGE INTO USVI COASTAL WATERS IS HARMFUL TO THE MARINE ECOSYSTEM, AND IS PARTICULARLY HARMFUL TO CORAL

 Even the Consent Order of 20 years ago acknowledged that dumping raw sewage into  coastal waters negatively impacts the marine ecosystem, in addition to imperiling human health.  Paragraphs 17 and 18 of the Consent Decree dated December 27,1990 state:

 DPNR records document an extensive chronology of unpermitted discharges of untreated sewage into the waters on all three islands.

 DPNR took official notice of the fact that sewage pollution degrades the environment and imperils human health. Sewage contains nutrients such as nitrogen and phosphorous that when discharged into the marine environment can induce massive growths of algae. The decomposition of this algae consumes oxygen and can cause the level of dissolved oxygen in the water to be below that which can support many species of aquatic organisms.

 These [sewage induced] algae blooms and the growth of other organisms then often  stifle corals or outcompete them for space (Jones & Endean, 1976). In addition, direct  sedimentation can smother a shoreline reef, and Staghorn and Elkhorn Coral are particularly  sensitive to sediment as they are among the least effective of the reef-building corals at trapping  and removing sediment from their surface. Staghorn and Elkhorn Coral are both threatened  species, protected by the Endangered Species Act.

Untreated sewage increases the water’s turbidity, which, in turn, obscures the light on  which corals thrive. Light deprivation ultimately will starve a coral, which is dependent on its  symbiotic algae (zooxanthellae) to generate food photosynthetically (UVI, 2001; Bryant et al.,1998). NOAA website.)  Pursuant to 73 FR 72210, “Elkhorn and Staghorn Coral require  relatively clear, well-circulated water and are almost entirely dependent upon sunlight for  nourishment …”

 VIWMA MAY NOT DUMP RAW SEWAGE WHERE IT WILL ADVERSELY AFFECT THREATENED OR ENDANGERED SPECIES 

  Solid waste disposal facilities or practices are not allowed to cause or contribute to the  taking of an endangered or threatened species (40 C.F.R. § 257.3-2). That statute states in part:  § 257.3–2 Endangered species.

(a)    Facilities or practices shall not cause or contribute to the taking of any endangered or threatened species of plants, fish, or wildlife.

(b)   The facility or practice shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species as identified in 50 CFR part 17.  Sewage sludge may not be placed where it is likely to adversely affect a threatened or  endangered species (40 C.F.R. § 503.24).  § 503.24 Management practices.

(c)    Sewage sludge shall not be placed on an active sewage sludge unit if it is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.

 PRESIDENT CLINTON’S EXECUTIVE ORDER 13089 MANDATES THAT ALL FEDERAL AGENCIES PROTECT ALL CORAL REEFS

Executive Order 13089 protects all Coral found in US waters, mirroring the Endangered  Species Act in its provisions. 

Section 2. Policy. All Federal agencies whose actions may affect U.S. coral reef ecosystems shall: (a) identify their actions that may affect U.S. coral reef ecosystems; (b) utilize their programs and authorities to protect and enhance the conditions of such ecosystems; and (c) to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems.

Section 3. Federal Agency Responsibilities . In furtherance of section 2 of this order, Federal agencies whose actions affect U.S. coral reef ecosystems, shall, subject to the availability of appropriations, provide for implementation of measures needed to research, monitor, manage, and restore affected ecosystems, including, but not limited to, measures reducing impacts from pollution, sedimentation, and fishing.

To the extent not inconsistent with statutory responsibilities and procedures, these measures shall be developed in cooperation with the U.S. Coral Reef Task Force (USCRTF) and fishery management councils and in consultation with affected States, territorial, commonwealth, tribal, and local government agencies, nongovernmental organizations, the scientific community, and commercial interests.

Despite the above Executive Order, the EPA is not protecting and enhancing USVI coral  reef ecosystems, nor is the EPA ensuring that its actions will not degrade the condition of the  USVI coral. To the contrary, the EPA is allowing the degradation to continue.

DPNR, MEMBER OF THE U.S. CORAL REEF TASK FORCE IS MANDATED TO PROTECT ALL CORAL

  The Virgin Islands DPNR is a member of the U.S. Coral Reef Task Force, as is  Governor deJongh. Clearly, DPNR and its various divisions are not following its mission, neither  are they enforcing federal laws, such as the Endangered Species Act, nor following the  mandates, resolutions or local action strategies of the U.S. Coral Reef Task Force. Instead,  DPNR, by allowing VIWMA to dump raw sewage, is actively condemning the endangered  species. The Director of the Virgin Islands Coastal Zone Management, is a member of the U.S.  All Islands Coral Reef Committee.  CZM also has a duty and obligation to enforce and uphold  federal laws and protect endangered species and their habitat.

The Division of Environmental Protection is responsible for environmental protection  and the enforcement of environmental laws and regulations in the US Virgin Islands. The  Division of Environmental Protection (DEP) receives funding and has been delegated  responsibility for environmental protection by the United States Environmental Protection  Agency (EPA), under the auspices of EPA Region 2.

The mandates of the Division of Environmental Protection are to protect and conserve  the natural resources of the Government of the US Virgin Islands; air, water and land upon  which life depends, and the health, comfort, and repose of the public.

By allowing this dumping of millions of gallons of raw sewage to continue, none of  these agencies are protecting Humans, Coral, or Endangered Species.

THE EPA IS IN VIOLATION OF THE ENDANGERED SPECIES ACT

The Endangered Species Act affects regulation under the Clean Water Act. The Services  have a policy to ensure coordination with State Agencies for gathering information in  implementing the consultation program. [59 FR 34274-34275 (July 1, 1994)]  In early 1999  EPA, FWS, and NMFS published a draft Memorandum of Agreement regarding enhanced  coordination under the Clean Water Act and the ESA. 64 Fed. Reg. 2741-57 (January 15, 1999).

The Endangered Species Act, 16 U.S.C. §1531 et seq.  mandates that the EPA shall seek to conserve endangered species and threatened species and shall utilize its authority in  furtherance of the purposes of that Act. Raw sewage pollutes sea grasses and sponges, the food of Hawksbill and Green Sea Turtles who must eat to live. Staghorn and Elkhorn Coral require  clear, unpolluted water to survive.  The Endangered Species Act, 16 U.S. Code §1251 et seq.  protects these local Turtles and Coral, and there are strong civil and criminal penalties for those  who willingly refuse to protect endangered species by fouling coastal waters with raw sewage.

The EPA must “ensure that actions it authorizes, funds, or carries out are not likely to  jeopardize the continued existence of any listed species or result in the destruction or  adverse modification of designated critical habitat of such species.”

Instead, the EPA is allowing the dumping of raw sewage to continue, without moving the  Court for Contempt or Receivership or seeking punitive sanctions.

 NOAA, NPS, DOI SHOULD BE JOINED TO THIS CASE

Upon information and belief,  the EPA has not coordinated with NOAA or NPS to assess  the damage and formulate a plan for USVI coastal waters and the affected endangered species.   Since the Endangered Species Act is under the auspices of the Department of the Interior, and  the National Park Service is negatively impacted by the raw sewage’s affect on the Salt River  National Park, it would be most appropriate to join NOAA and NPS to this case to assess the  present condition of the coastal waters and determine how to best restore and maintain the  chemical, physical and biological integrity of the marine ecosystem and help the Coral and  Turtles from the impacts caused by the repeated discharges of millions of gallons of raw sewage.

In consideration of the public, student and community educational aspects should be  included in the funding of this project; studies on coral reefs and endangered species should be  offered to local schools as well as seminars on recycling and composting for the community.   Further, NOAA should consider a partnership with the UVI Center for Marine and  Environmental Studies. For example, NOAA and UVI could work jointly on a project to re-colonize Coral, turtle grasses and sponges.

This case should go forward as an opportunity for local and federal agencies to work  together with Citizens to set up a responsible waste management authority which will bring the  waste water system into compliance, as well as bring badly needed recycling, composting and  marine pump-out stations to the territory.  Much positive, dynamic work can be accomplished, as  long as there is coordination and transparency.

 RECEIVERSHIP IS THE ONLY VIABLE ALTERNATIVE

The People of the Virgin Islands deserve to have a waste management authority which  follows Court Orders and federal law, and will not pump any more raw sewage into our coastal  waters.  After 27 years, it is time to place VIWMA in Receivership, have a forensic accounting, and have a private waste management company bring the wastewater systems into compliance.  With the EPA paying for the initial set-up of the Receivership, much can be achieved quickly.

On July 2, 2009, EPA Administrator Jackson raised the bar of federal and state enforcement  performance of the Clean Water Act, and pressed to inform the public clearly and fully about serious  Clean Water Act violations and actions to address them, and to use 21thCentury technology to  transform the collection, use, and availability of EPA data. In order for Region 2 EPA to comply with  their Administrator and keep the public informed clearly and fully, it is necessary to have strong  oversight along with the overwhelming transparency mandated by President Obama.

Therefore, placing VIWMA in receivership, with overwhelming transparency, is the most reasonable and viable alternative available, since decades of attempts at compliance have failed.  A Receiver would prepare a comprehensive financial accounting and submit a report and proposed plan to the Court. A private waste management company would be appointed to assess the necessary steps to bring VIWMA into compliance with federal laws in regard to the wastewater system, as well as solid waste concerns. The private waste management team would also make recommendations and proposals for the neglected areas of recycling, composting and marine pump-out stations, bringing the territory into compliance with 33 U.S. Code § 1322, so that boats will no longer be discharging their waste into coastal waters. Together, the Receiver and waste management company would review current contracts and make joint recommendations as to sound waste management financial practices such as charging tipping fees for waste disposal. With the EPA being ordered to pay a substantial amount into the Receivership Fund, this work could proceed immediately.

Respectfully submitted,

______________________

Susan K. Wolterbeek, Pro Se

PO Box 306658

St. Thomas, VI 00803

susan@GreenerVI.org