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June 6th Reply to AUSA Frankel

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

 

           INTERVENOR’S REPLY TO RESPONSE BY AUSA FRANKEL

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

INTERVENOR SHOULD NOT BE PENALIZED FOR FOLLOWING THE SPECIFIC DIRECTIVES OF THE FEDERAL DISTRICT COURT’S SUPERVISING CLERK

        I am a Pro Se Plaintiff, and have never been a party or Counsel in Federal District Court. Therefore, after I prepared all the documents and exhibits in this case, I discussed them with the Supervising Clerk of Court, Ms. Francis, on or about May 10, 2011.

Ms. Francis directed me to only file the Motion to Intervene and supporting Brief and Affidavit, until I received Court approval to intervene. Then, after Court approval, I should file the Complaint in Intervention, Motion for an Expedited Hearing on Contempt and Receivership, and supporting Brief and Affidavit. Further, Ms. Francis stated I should not file Exhibit 1, the 186 VIWMA Non-Compliance Reports from 1/1/10-3/23/11, unless the Court so directed, as the parties may have  filed the same documents, and they were a large exhibit. Once I was a made a party, then I would be accepted into the electronic filing system, but until then I should send a hard copy and email to the 6 attorneys and the Court Monitor. I respectfully followed these directives by Supervising Clerk Francis.

When I received the Response from AUSA Frankel, on Friday May 27, 2011, I immediately called Clerk Francis, who stated I should go ahead and file the Complaint now with the Reply, instead of waiting any longer, and inform the Court what happened. Since I was following the specific directives of the Supervising Clerk, the timing of my filings should not be contested.

INTERVENTION IS TIMELY AS VIWMA, DPNR AND THE EPA ARE ALL CURRENTLY IN VIOLATION OF THE CLEAN WATER ACT AND THE ENDANGERED SPECIES ACT

        AUSA Frankel argues that this Citizen’s involvement in this case should be curtailed, because the action has been going on for decades, discovery would be inappropriate at this late juncture, and that the Court already heard the necessary testimony in the case. Also, he states that the EPA is diligently prosecuting this case. Nothing could be further from the truth, which is the precise reason for this Citizen’s Suit.

I have been urging the EPA to file for Contempt and Receivership, rather than my having to do so as a vulnerable Citizen, but the EPA will not do so.

As detailed in the Complaint in Intervention, Brief and Affidavit in Support of Motion to Intervene, the EPA has been totally ignoring my letters and documentary evidence over the past year, which revealed VIWMA’s specific continued and willful disregard of Court Orders, the Clean Water Act and the Endangered Species Act. If this federal agency had at least verified that VIWMA was following the specific Court Orders of 3/18/10, such as buying new pumps for the Figtree station, there would not currently be an ongoing bypass at Figtree since 5/3/11.

The hearing on  May 11, 2011 confirmed what I have been contending since April , 2010, that VIWMA has been in continual violation of court orders and federal laws. The voluminous bypasses also proved DPNR and the EPA have failed to supervise and regulate VIWMA, allowing this contemptuous and criminal behavior to continue, to the detriment of the people of the Virgin Islands and our marine ecosystem, endangering tourism and our economy as well.

THE EPA DID NOT FOLLOW-UP WITH THE COURT REQUESTING AN ORDER AFTER ITS REPLY FILING IN AUGUST

       On March 30, 2011, EPA Attorney Gonzalez stated to me that he was actually considering moving this case to another Federal District Court, because this Honorable Court does not seem to care about the case, since the Court did not issue any Order after the EPA’s filings in August, 2010. I immediately called the Federal District Court Clerk, who told me that the EPA had not filed any Motion in August. [The EPA/US Attorney’s Office had filed a Reply].  Nonetheless, the Court reviewed the file and issued an order the next day.  The US Attorney’s Office  and the EPA are powerful federal agencies, unlike me, an ordinary Citizen, and they are also parties to this case, yet neither AUSA Frankel nor the EPA contacted the Court since August to request a Court Order based upon their filings. AUSA Frankel actually blames the Court for inaction, when all he had to do is make a telephone call, as I did.

“The United States filed the Emergency Motion in order to stop bypasses from all of VIWMA’s  pump stations and, until March 31, 2011, awaited further Court action concerning the relief sought in the motion.”

Whether the Court had issued an order last August or not, nothing has precluded AUSA  Frankel or the EPA from filing for Contempt for VIWMA’s constant bypasses, failures to give  public notice, and failures to purchase court ordered pumps.

 DESPITE MY GIVING THE EPA THE SUMMARY OF MASSIVE RAW SEWAGE BYPASSES SINCE LAST YEAR, THE EPA GROSSLY UNDERSTATED THESE BYPASSES IN ITS 4/11/11 FILINGS, THEN SUBMITTED INCOMPLETE EXHIBITS

         I delivered Intervenor’s Exhibit 2 to the EPA attorneys on March 30, 2011, so they had  ample time to review the immense quantity of raw sewage bypasses since 3/18/10, and include  the data in their 4/11/11 filings. Instead,  the EPA chose to grossly understate the amount of  bypasses since the 3/18/10 Court Order. I immediately responded and urged Attorney Gonzalez to amend the EPA filings of 4/11/11. [Exhibit 10]. He did not clarify his filing. AUSA Frankel contends he has submitted all bypass information to the Court during a telephone conversation and his recently filed exhibits, yet even those exhibits are incomplete, as detailed at paragraph 27 of the Complaint in Intervention.

 IT IS VITAL THAT INTERVENOR BE MADE A FULL PARTY TO THIS SUIT TO ENSURE, FOR THE FIRST TIME IN 27 YEARS, DEFENDANTS’ COMPLIANCE WITH COURT ORDERS AND FEDERAL LAWS AND PUBLIC KNOWLEDGE OF THEIR ACTIONS

        VIWMA is a public authority, yet it will not release to the public even basic financial information, such as salaries of management and employees, as requested by the VI Daily News. VIWMA has not released an annual report to the public since 2005. I met with VIWMA’s Chief Planning Officer  on April 8, 2010, and hand delivered a letter requesting, at a minimum, expenditures and income by VIWMA since its 2005 Annual Report. [Exhibit 31]. I received nothing. On April  7, 2011, I requested septage and sludge reports, which must be maintained according to federal law. I received nothing. [Exhibit 32].

The 3/18/10 Court Order states that VIWMA must give public notice according to the TPDES permit if it causes the bypass of raw sewage into our coastal waters. Since that order, as shown with specificity in the Affidavit in Support of  Motion to Intervene, VIWMA has repeatedly and continually dumped raw sewage for 98+ days, yet failed to give public notice according to the TPDES permit. I have been providing the EPA proof of this failure for over a year, but the EPA would not enforce the Court Order or demand that VIWMA give public notice as required.

I have repeatedly requested of the EPA start dates stop dates and quantities of raw sewage dumped into USVI coastal waters since 3/18/10. The Public is entitled to this information under the Clean Water Act. Pursuant to Section 184-26(a)(3) of the TPDES Permit, any information obtained pursuant to any monitoring, records, reporting or sampling shall be available to the public. The Permit further specifies: “(b) Claims of confidentiality for the following information will be denied:…(2) …effluent data.”   33 U.S.C. § 1318 (b) of the Clean Water Act also states specifically that effluent data shall be available to the public. Nevertheless, the only information the EPA would provide were VIWMA’s Non-Compliance Reports, many of which do not have start and stop dates, and none of which have quantities.

As stated in the Complaint, 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. President Obama has directed that the EPA have a mandate of overwhelming transparency, yet in this case, the Regional Administrator ignored my correspondence, legal analyses and documentary proof of VIWMA’s continuing violations for many months. It was only after I corresponded with the Washington office of the EPA that Region 2 would even communicate with me.  By asking this Honorable Court to curtail my involvement by not allowing me to be a full party to this case, the EPA and AUSA Frankel are directly going against the directives of President Obama and EPA Administrator Lisa Jackson. 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 public oversight along with the overwhelming transparency mandated by President Obama. As an unrestricted party, I will at least have subpoena power, and recourse to the Court if the parties still refuse to turn over public information.

I personally have devoted over 1,000 hours of my time and energy to this case, in my quest to impel the local and federal agencies to comply with Court Orders and federal laws, and stop polluting our waters. It is outrageous that EPA Region 2 and AUSA Frankel have willfully ignored my proofs of civil and criminal violations of federal laws since April 2010, refused to regulate VIWMA, allowing a further 98+ days of dumping raw sewage, in addition to the current ongoing 34 day+ bypass, refused to move for Contempt and Receivership,  and yet asks the Court to constrain this Citizen from being a full party to this suit.

Wherefore, Intervenor respectfully requests that this Honorable Court order that Intervenor be immediately made a full party to this suit.

Respectfully submitted,

_______________________

Susan K. Wolterbeek, Pro Se

PO Box 306658

St. Thomas, VI 00803

susan@GreenerVI.org

Territory of the US Virgin Islands

District of St. Thomas and St. John

Sworn to before me by Susan K. Wolterbeek this 6th day of June, 2011.

 

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