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Clean Air Act violations

WAPA Polluting our Air, Water and Coral

This an example of the Virgin Islands Water and Power Authority (WAPA) polluting our Air, Water and Coral. This is a violation of the US Clean Water Act, the US Clean Air Act and the US Endangered Species Act. Unfortunately, this is just one of many violations that happen relatively frequently.

Wapa1

Thick, Dark Smoke from WAPA; Polluting our Air, Water and Coral

 

 

Wapa2

More WAPA pollution of our Air, Water and Coral

 

 

 

Citizen’s Suit – Motion to Intervene

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

Governor orders DPNR to look into HOVENSA Water distribution

By DANIEL SHEA (Daily News Staff)
Published: December 13, 2010

HOVENSA is coming under greater scrutiny following Thursday’s release of hydrocarbons.

ST. CROIX – After the latest release of gases from the HOVENSA refinery, Gov. John deJongh Jr. has directed the commissioner of the V.I. Department of Planning and Natural Resources to provide an operational assessment and recommendations on how the government can better monitor the emissions released into the air by the refinery.

Thursday’s release of hydrocarbons from HOVENSA was the fourth since mid-September. It caused sickness – vomiting, skin and eye irritation, dizziness – in nearly 200 students at St. Croix Central High School. The school closed early two days in a row as a result. At least 36 people went to Luis Hospital for treatment, the hospital said.

Since the release, a number of local politicians and community members have called for stricter monitoring of the air quality around and downwind from HOVENSA.

“I am very concerned by this string of emission incidents that we have witnessed since Sept. 17, and Thursday’s incident appeared to have been the most severe, causing several hundred people to seek medical attention,” deJongh said in a prepared statement.

The governor said he has directed DPNR Commissioner Robert Mathes to provide an assessment on steps that must be taken to “further enhance the government’s monitoring capabilities of the refinery” within 15 days. Mathes is also to talk with the U.S. Environmental Protection Agency about an operational assessment of the refinery.

In the past, government agencies have allowed HOVENSA to take the reins on any cleanup or remediation efforts after such releases. In fact, HOVENSA monitors its own emissions and provides the government with the only data available on how much gas and oil are released into the air.

That information is generally only released after an EPA-sanctioned threshold is broken.

Since Thursday’s incident, many have called for independent government monitoring of the refinery’s emissions, including V.I. Delegate to Congress Donna Christensen, Sens. Nereida Rivera-O’Reilly and Sawn-Michael Malone, and St. Croix Environmental Association Executive Director Paul Chakroff.

Over the weekend, HOVENSA personnel cleaned up the hydrocarbons released Thursday that were deposited on Central High School, according to V.I. Education Department spokeswoman Juel Anderson.

DeJongh said he is also considering contracting an “oil refinery expert” to conduct an assessment of HOVENSA operations and to make an independent review of the impact on the lives and well-being of those who work at the refinery. He said he will wait for the results of talks among DPNR, HOVENSA and the EPA to make that move.

DPNR is preparing notices of violation for the four incidents, which will impose monetary fines against the refinery and require corrective action.

While speaking sternly about the mishaps at HOVENSA, the governor also alluded to the refinery’s massive economic impact in the territory, calling it an “extremely critical part of our economy.”

HOVENSA makes up close to 20 percent of the territory’s gross domestic product, according to V.I. Bureau of Economic Research Director Lauritz Mills.The V.I. Health Department is advising residents of Estate Clifton Hill and Fredensborg not to consume water from their cisterns until further notice.

 

Feds sue V.I. over landfills

By CONSTANCE COOPER, reporter, Daily News Staff
Published: July 16, 2010

ST. THOMAS — The federal government has filed a lawsuit against the V.I. Waste Management Authority and the Virgin Islands government that could cost the territory hundreds of millions of dollars in fines for their failure to bring the territory’s landfills up to Environmental Protection Agency standards.

“As a responsible community, we’re finding that if you don’t do enough to comply with regulations in the beginning, you end up paying for the compliance in the end,” Waste Management Authority Director May Adams Cornwall said in an interview. “I would have hoped that we could have done that, not because we had been ordered to do that, but because it was the right thing to do.”

Cornwall said that St. Thomas’ Bovoni landfill, which has been in use since 1970, and St. Croix’s Anguilla landfill, in operation since 1966, were not built to take trash over the long term. She said the authority has made strides toward meeting federal regulations, including awarding a contract and obtaining the necessary permits to build a St. Croix waste transfer station and obtaining $3.8 million in local funds to trap methane being emitted at the Bovoni dump.

“It’s kind of a little bit of a shoot-down when you’re working so hard to get something done,” Cornwall said. But, according to the federal government’s lawsuit, the authority has not been working hard enough. The EPA has been working with the local government for 10 years to bring the landfills into compliance with federal standards.

In June 2000, the V.I. government was tasked with correcting issues at the Bovoni landfill that resulted from improper disposal of medical and septic waste, failure to consistently cover the dump with dirt, improper disposal of used oil, the dumping of lead-acid batteries, contaminants seeping into Mangrove Lagoon and subterranean and surface fires at the dump, according to the lawsuit.

At Anguilla, the V.I. government agreed in September 2001 to correct issues that included failure to consistently cover the dump with dirt, inadequate security, inadequate inspection of garbage loads for hazardous waste, and subterranean and surface fires, according to the lawsuit.

The lawsuit says that the Waste Management Authority also agreed to make plans to close both dumps.

In October 2007, the authority submitted a landfill compliance schedule for Anguilla that said the dump would be closed by December 2008, the lawsuit states. In November 2005, the authority submitted a timetable to the EPA that promised that a long-term construction contract for the Bovoni landfill — including execution of the landfill’s closure — would be awarded by June 2008.

As of May 21, the progress with both landfills was deemed unsatisfactory enough that the U.S. Justice Department filed the suit on behalf of the EPA.

The lawsuit seeks the following penalties:

•    A fine of up to $27,500 per day for each violation of the Clean Air Act from April 6, 2001, to March 15, 2004, at the Bovoni landfill

•    A fine of up to $27,500 per day for each violation of the Clean Air Act from April 6, 2001, to March 15, 2004, at the Anguilla landfill.

•    A fine of up to $32,500 per day for each violation of the Clean Air Act from March 15, 2004, to January 12, 2009, at the Bovoni landfill.

•    A fine of up to $32,500 per day for each violation of the Clean Air Act from March 15, 2004, to January 12, 2009, at the Anguilla landfill.

•    A fine of up to $37,500 per day for each violation of the Clean Air Act after January 12, 2009, at the Bovoni landfill.

•    A fine of up to $37,500 per day for each violation of the Clean Air Act after January 12, 2009, at the Anguilla landfill.

Cornwall said that the lawsuit was “regrettable in the sense that it doesn’t send a good message to this community or to the staff that has been working extremely hard,” but added that a court action might help the authority garner the political will to charge waste fees to pay for the management and closure of the territory’s landfills.

The Environmental Protection Agency could not be reached by presstime for comment on the lawsuit.

 

Hovensa must cut Smog- and Asthma-causing emission by 8,500 tons per year

Nation’s Second Largest Refinery to Pay More Than $5.3 Million Penalty for Clean Air Act Violations / Smog- and asthma-causing emissions to be cut by 8,500 tons per year

Release date: 01/26/2011

Contact Information: Stacy Kika, kika.stacy@epa.gov, 202-564-0906, 202-564-4355

WASHINGTON—The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice announced today that Hovensa LLC, owner of the second largest petroleum refinery in the United States, has agreed to pay a civil penalty of more than $5.3 million and spend more than $700 million in new pollution controls that will help protect public health and resolve Clean Air Act violations at its St. Croix, U.S. Virgin Islands refinery. The settlement requires new and upgraded pollution controls, more stringent emission limits, and aggressive monitoring, leak-detection and repair practices to reduce emissions from refinery equipment and process units.

“This settlement will produce significant benefits for the environment and for the people of the Virgin Islands,” said Cynthia Giles, assistant administrator of EPA’s Office of Enforcement and Compliance Assurance. “The commitments made by Hovensa to install state-of-the-art pollution controls will mean cleaner air for years to come.”

“This important settlement with the second largest refinery in the United States will result in significant improvements to human health and the environment of the United States Virgin Islands,” said Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division of the Department of Justice. “Because of this settlement, Hovensa will install advanced pollution control and monitoring technology, will adopt more stringent emissions limits, and will also create a fund dedicated to local environmental projects. This is another major step in our efforts, alongside EPA, to bring the petroleum refining sector into compliance with our nation’s environmental laws.”

The government’s complaint, filed concurrently with today’s settlement, alleged that the company made modifications to its refinery that increased emissions without first obtaining pre-construction permits and installing required pollution control equipment. The Clean Air Act requires major sources of air pollution to obtain such permits before making changes that would result in a significant emissions increase of any pollutant.

Once fully implemented, the pollution controls required by the settlement are estimated to reduce emissions of nitrogen oxides (NOx) by more than 5,000 tons per year and sulfur dioxide (SO2) by nearly 3,500 tons per year. The settlement will also result in additional reductions of volatile organic compounds, particulate matter, carbon monoxide and other pollutants that affect air quality. Additional pollution-reducing projects at the refinery’s coking unit under the settlement will also reduce greenhouse gas emissions by over 6,100 tons per year.

High concentrations of SO2 and NOx, two key pollutants emitted from refineries, can have adverse impacts on human health, and are significant contributors to acid rain, smog, and haze.

The government of the U.S. Virgin Islands has joined in the settlement and will receive a portion of the civil penalty. In addition, the company will set aside nearly $4.9 million for projects to benefit the environment of the U.S. Virgin Islands. The projects will be identified jointly by the U.S. Virgin Islands government and Hovensa, in consultation with EPA.

The settlement with Hovensa is the 28th under an EPA initiative to improve compliance among petroleum refiners and to reduce significant amounts of air pollution from refineries nationwide through comprehensive, company-wide enforcement settlements. The first of EPA’s settlements was reached in 2000, and with today’s settlement, 105 refineries operating in 32 states and territories – more than 90 percent of the total refining capacity in the United States – are under judicially enforceable agreements to significantly reduce emissions of pollutants. As a result of the settlement agreements, refiners have agreed to invest about $6 billion in new pollution controls designed to reduce emissions of sulfur dioxide, nitrogen dioxide and other pollutants by over 360,000 tons per year.

Hovensa is one of the 10 largest refineries in the world and has the capacity to refine more than 525,000 barrels of crude oil per day.

The consent decree, lodged in the District Court of the Virgin Islands, is subject to a 30-day public comment period and court approval.

More information on the Hovensa settlement:
www.epa.gov/compliance/resources/cases/civil/caa/hovensa.html

HOVENSA Fined for Violating Clean Air Pollution Regulations

EPA representative briefs V.I. Senate on HOVENSA

By DANIEL SHEA (Daily News Staff)
Published: January 27, 2011

ST. THOMAS – Just before the first break in the day’s proceedings Wednesday at a committee hearing in the V.I. Legislature, Sen. Alicia Hansen asked a U.S. Environmental Protection Agency representative to relay a bombshell piece of news to the senators and others present.

“This morning, a consent decree was lodged in the federal court in which HOVENSA was levied more than $5 million in penalties,” said EPA Caribbean Environmental Protection Division Director Carl-Axel Soderberg. “In addition, it has to pay more than a quarter million dollars to the Virgin Islands.”

The news of the filing of the consent decree, which Soderberg said had been in negotiation for more than five years, had been anticipated for weeks. But the recent string of chemical releases by the refinery pushed the matter to the forefront, causing the EPA and U.S. Justice Department to mandate and finalize the order, Soderberg said.

The news came as a surprise to a number of senators on the V.I. Senate’s Government Operations, Energy and Veterans Affairs Committee hearing Wednesday.

They said they knew that the EPA was working on resolving issues with HOVENSA but did not realize it was on such a large scale:

– The federal government fined HOVENSA $5.125 million for violating the Clean Air Pollution Regulations.

– $250,000 in fines is to be paid to the Virgin Islands.

– HOVENSA was ordered to establish an escrow fund of $4.875 million for supplemental environmental projects in the territory.

– HOVENSA has to invest $700 million in capital projects over the next decade to reduce its emissions.

“It definitely clarifies for us that HOVENSA has been in violation for some time with its emissions,” Sen. Terrence Nelson said.

V.I. senators have been speaking out in recent months after a series of chemical releases at HOVENSA highlighted what had been a long-standing problem, according to the decree.

Sen. Nereida Rivera-O’Reilly had drawn up a bill that would have created a similar escrow account that all territorial polluters would have to contribute to in order to fund a more robust DPNR monitoring program. Rivera-O’Reilly had drafted the bill even before a series of chemical releases began in September.

Shortly after the most serious incident on Dec. 9, when more than 250 students and staff at St. Croix Central High School reported sickness after a release of hydrocarbons from the refinery that morning, a number of other senators began to speak out against HOVENSA.

Sen. Shawn-Michael Malone said he wants to establish an air monitoring network on St. Croix and fund a health study to determine the long-term affect of the refinery’s emissions on the residents downwind. He reiterated his intentions at Wednesday’s hearing.

Sen. Usie Richards also agreed that the territory needs to find funding for studies to track and study the health affects on the community.

He said that the V.I. Health Department needs to be able to test the cisterns of residents, which is another contentious issue because HOVENSA has done the testing and provided its own results to the government.

“It is totally absent and the V.I. Code requires that the Department of Health has those capabilities,” Malone said.

The air-quality monitoring also has been left largely to HOVENSA, except for sporadic testing on the part of the EPA or follow-up testing done in response to a release, Soderberg said.

In addition, HOVENSA must submit quarterly reports on the maintenance of its facility, according to acting DPNR Commissioner Alicia Barnes.

But almost all of that information is gathered by HOVENSA and then submitted to the regulating agencies. And DPNR only has the staffing capability to perform audits on a three-year basis, officials have said.

DPNR will be in charge of monitoring HOVENSA’s progress with the decree, which could create a staffing issue for the department. There are grants, however, that could fund additional positions, Barnes said.

“The problem I have is that HOVENSA monitors itself,” Sen. Ronald Russell said.

A number of senators were under the impression that the EPA should have been monitoring or at least providing money for monitoring.

“It appears to me that the EPA doesn’t regulate with the same stringent measures that it uses in other states,” Nelson said.

Soderberg tried to dispel any such notion.

“The monitoring systems that have been established in the Virgin Islands are, as far as I know, the same as others that have been established in places like New Jersey and New York,” he said. “The EPA finances some of the establishment of these air-monitoring systems, and they are then run by the state agency.”

Currently, DPNR has only stationary monitors that test for particulate matter and lacks the equipment needed to determine the levels of sulfur dioxide, nitrogen oxide, hydrogen sulfide and hydrocarbons that can be released in refinery discharges.

Many senators have called out the EPA for not playing a greater role.

Sen. Louis Hill wrote a letter to the EPA requesting that the federal agency conduct a health study to determine how the refinery has affected residents’ health. Hill said that the territorial agencies do not have the expertise to monitor the massive refinery.

“This is the first time that I’ve known that the federal government has taken action like this with reference to HOVENSA,” Richards said.

Other senators have emphasized the importance of taking on HOVENSA from the territorial level.

“It should be the local government’s priority, not theirs,” Nelson said, referring to the federal government.

“We can’t wait for anyone else to do it for us. It’s time we start to be noticed here,” Nelson said. “HOVENSA contributes close to $900 million to the U.S. Treasury annually, and we are the ones that have to deal with the pollution.”

– Contact Daniel Shea at 774-8772 ext. 457 or e-mail dshea@dailynews.vi.
Read more: http://virginislandsdailynews.com/news/epa-representative-briefs-v-i-senate-on-hovensa-1.1096193#ixzz1Gd2PSdoW

 

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