From: Susan Wolterbeek [mailto:susan@greenervi.org]

Sent: Monday, April 04, 2011 2:51 PM
To: ‘Gonzalez.EduardoJ@epamail.epa.gov’
Cc: ‘Feinmark.Phyllis@epamail.epa.gov’; ‘SueParten@aol.com’
Subject:

Dear Eduardo:

Since the court has just given you a week to report on whether 50,000 is enough for a pump repair emergency fund, I hope the following information may be of help. In order to state the facts, you would want to let the court know about all the pumps which have broken down since last year, and then it follows logically that you would want and need to tell the court that VIWMA is in contempt of the 3/18/10 Order.  In looking at the utter contempt for which VIWMA regards federal district court orders, a good place to start is with this 5/4/2010 letter to Carl Soderberg. I have added updates in blue:

     Susan K. Wolterbeek, Esq.     St. Thomas, VI 00803-6658      (340) 714-2233      susanremy@vipowernet.net

                                                                                      May 4, 2010

Dear Director Soderberg:

                                          I am writing to you as a stateside attorney, former Assistant District Attorney for the State of New York, and a resident of the U.S. Virgin Islands. Thank you for your response. It appears from the Federal District Court Order, your response, May Adams Cornwall’s statement to the Press and lack of public announcements, that 4 specific orders are not being followed:

1. “that the VIWMA shall comply with the public notification requirements listed in the Territorial  Pollution Discharge Elimination System permits.” It was my understanding from speaking with Mr. Casey that the announcements should be given on all three islands. There is a DEP Press Release dated February 5, 2010 monitoring a raw sewage discharge at Frenchtown Boat Ramp in St. Thomas, but there were no DEP Press releases in January, February or March stating VIWMA was dumping 1.2 million gallons of raw sewage per day, and that people should stay out of those waters. When VIWMA again dumped raw sewage from April 24-27^th, there was no DEP Press release or any other warning I could find on VIWMA or DPNR websites, the VI Daily News, or television.  The only announcements that I have seen are the VIWMA commercials saying they are “preserving paradise”.

Note: VIWMA and DPNR are still willfully refusing to comply with public notification requirements, and NO ONE is making them comply. According to Jamal Neilsen Media Relations Coordinator of DPNR, the hotels do not want them to post warnings, and it would not be fair if DPNR only posted on non-hotel beaches. Mr. Neilsen said tourists could learn of the discharges by listening to the radio when announcements are given. The few press releases given in 2011 were each only printed once, not in the prescribed form, and not published every day there were on-going bypasses. Thus, unless a person happened to read the paper on the one day it was published, even with on-going bypasses, for weeks or months, that person would have no idea there was an on-going bypass.  You could send a copy of the specific, required Public Notice, attached, and ask the Editor in Chief of the St. Croix Avis and VI Daily News whether they have printed such notices since March 18, 2010, and to send you copies of any bypass information they printed.

1.  “that two auxiliary diesel pumps shall be operational on St. Croix, the first by Wednesday, March 24, 2010, and the second by Friday, March 26, 2010.

You stated in your response; “Regarding the pumping stations in St. Croix, we learned yesterday that two auxiliary diesel pumps at LBJ are currently not operational.”

Surely there was a certification by VIWMA saying they were operational. My letter to Mr. Soderberg prompted him to inquire and to find out, surprise, surprise, that the above pumps WERE NOT operational. What happened then? Were they ever fixed?

1. In an attempt to comply with orders concerning the Figtree pump station, Mr. Aubin certified that VIWMA took a house pump from the LBJ station. Doesn’t that then put the LBJ station at risk? By prior order of August 31, 2003, all house pumps must be operational at all times. Is LBJ currently operational with a house pump and back-up pumps? In light of your above response, LBJ appears at risk.

On Friday April 16, 2010, the VI Daily News reported that Waste Management Authority   Executive Director May Adams Cornwall stated “The LBJ pump station is also down one pump.” and “”We do not have expectations to see anything like what happened at Figtree to happen on any of the islands again,” Cornwall said. It happened 8 days later.

Indeed, according to a statement by VIWMA released on 4/27/10, “because of a broken force main”, VIWMA again dumped raw sewage over Long Reef from 4/24 through 4/27  “to reduce the impact to the adjacent neighborhood and prevent sewer overflows in Christiansted town and surrounding areas.”

I later learned that from 4-28-2010 until at least 5-3-2010, LBJ broke down and sewage was again diverted over Long Reef. Please note that there was no Non-Compliance Report of this event in those reports I forwarded to you from Mr. Casey. LBJ had a broken force main September 8-11^th, as well. Also note from the Non-Compliance Discharge Report List that  Barren Spot had pump failure from September5-8^th, just before the LBJ force main break.

This year, from 1-27-2011 until 2-9-2011 13 days of bypassing occurred during the installation of LBJ’s new force main, (written up as 10 days, 11.5 hours).

1. Steve Aubin, Chief Operating Officer certified to the Federal District Court on March 23, 2010, that St. Thomas’ Cancryn Pump Station, the island’s main station, has pumps that are operational and back-up pumps that can manage the effluent flow.

However, on Friday April 16, 2010, the VI Daily News reported that Waste Management Authority   Executive Director May Adams Cornwall stated that the Cancryn Station “has been without a working pump for close to nine months, Cornwall said. A contractor is diverting flow around Cancryn to another station while cleaning takes place. The station should be back up and running by the end of April, Cornwall said.”  Cornwall’s statement shows Aubin’s certification in March to be invalid.

From 2/24/2011-3/2/2011 there were Force Main Breaks at both Hovensa and Fig Tree Pump Stations. Further, on January 4, 2011 the Weymouth Rhymer Pump Station had a Force Main Break, which is described in duration as ONGOING. Is this station still bypassing, today? Did it stop? When? Where is the Non-Compliance Report?

You state that the EPA is concerned that VIWMA has been dumping 1.2 million gallons per day of untreated sewage into our coastal waters. DPNR, DEP and the local EPA knew about this in January, and you did not stop it, and the local agencies have allowed this dumping to happen, on and off,  for decades.  Even after I reported it to the EPA, on February 6, 2010, all of the above agencies allowed VIWMA to dump a further 46.8 million gallons of raw sewage until mid-March, 2010.

Director Soderberg, what follows is a rough analysis I have prepared since your email on Friday, focusing on environmental impacts, rather than threat to human health. However, it should be noted that VIWMA had been again diverting wastewater flow to sea over Long Reef from 4/24/10-4/27/10 and advised “anyone with a compromised immune system to continue to avoid Long Reef until the Department of Planning and Natural Resources declares the beach safe for water activity.”

Then there was the Ironman Triatholon a few days later.  Instead of having the race at another location, the athletes in the Iron Man Triathalon on Sunday, May 2, 2010 swam in a long race in Christiansted Harbor, an area affected by that dumping, as well as the previous 72 million gallon dumping of raw sewage. Were the athletes told of the health risk? Do you understand that these athletes are now at risk of getting many horrible diseases, some of which are life threatening, and starting epidemics, such as cholera and typhus?  The VI government, VIWMA, Board of Tourism, Health Department, DPNR, DEP, EEP and EPA allowed this race to occur, did not warn the competitors, and is still doing nothing to alert the athletes, the CDC, the current tourists and residents, etc.

VI Waste Management Authority (formerly DPW) has been dumping raw sewage into coastal waters of St. Croix, St. Thomas and St. John for decades.

To deal with the many violations of the waste management authority dumping untreated sewage, the local agencies entered into a Consent Agreement, in 1990, which is currently before the Federal District Court of the US Virgin Islands.

In the 1990 consent agreement, DPNR and DPW, now 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. Nevertheless, these illegal dumpings have occurred many, many times since 1990.

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.

Dumping untreated sewage on a reef kills Coral and adversely modifies Coral’s Critical Habitat

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:

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

18. 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 reefbuilding corals at trapping and removing sediment from their surface.

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 …”

President Clinton’s Executive Order 13089 mandates that the federal agencies protect Coral Reefs

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.

Did the EPA contact the Coral Reef Task Force, and let them know VIWMA was dumping close to a protected National Park Marine Reserve, and upstream from Salt River, a new National Park?

At the 2008 USCRTF meeting in Kona, Hawaii, the USCRTF celebrated its 10-year anniversary and issued a renewed call to action to conserve and protect coral reefs, noting the severity of the threats facing coral reefs and the immediate need to take action:

It is clear that the USCRTF, with partners, must significantly increase our collective effort to

address the factors over which we can exercise control. The USCRTF must take immediate

action to respond to these threats and, in turn, seek to sustain our coral reef ecosystems and the communities that depend upon them….Science has demonstrated that reef communities can recover when they are protected and stressors are removed. Urgent action is needed to reduce greenhouse gas emissions. In the meantime, precious time for coral reef ecosystems can be secured through increased protection from land and marine pollution, unsustainable fishing, development, and other stressors, all of which we know can damage coral health. The time to act is now.

Buck Island Reef National Monument is a No Take Marine Reserve, and the flow of raw sewage flows down toward Salt River National Park

The dumping of 72 million gallons of raw sewage over Long Reef is out of the LBJ pump station, in close proximity to the Buck Island Reef National Monument, and is upstream from the Salt River National Park. Did the EPA, or any local agency, contact the National Park Service in January? Has the EPA contacted NPS yet? NPS established fully protected marine reserves at Buck Island Reef National Monument in order to restore fish populations and reef ecosystems and protect corals from physical damage.

Buck Island Reef National Monument was established to preserve “one of the finest marine gardens in the Caribbean Sea.” The park is one of a few fully marine protected areas in the National Park System. The 176-acre island and surrounding coral reef ecosystem support a large variety of native flora and fauna, including the hawksbill turtle and brown pelican.

State-Federal Partnerships have been made on Marine Reserves and Ecosystem Based

Research. “No-take” marine reserves have been established at Buck Island Reef National Monument, to restore and protect marine ecosystems and species they support from overfishing and anchor damage. The National Park Service has a clear scientific mandate to evaluate the performance and potential restorative impacts of these new reserves.

Fortunately, as reported by the reserve, it appears to be upstream from the effluent flow. Therefore, hopefully, it appears there was no damage to the reserve. However, the Salt River Bay National Historical Park and Ecological Preserve is downstream and around a corner from the effluent flow. 

Salt River Bay National Historical Park and Ecological Preserve was created in 1992 as part of the National Park System. The National Park Service and the Government of the United States Virgin Islands jointly manage this 1,015-acre park. The area’s blend of sea and land holds some of the largest remaining mangrove forests in the Virgin Islands, as well as coral reefs and a submarine canyon. It’s said to be the place where Christopher Columbus first encountered the native people of this hemisphere and is a truly special place for both its ecological and historical significance.

Salt River National Park has received a $1.25 million federal grant to design a marine education and research center on St. Croix. The Assistant Secretary of the Interior of Insular Areas Anthony M. Babuata visited St. Croix, and presented the grant to the National Parks Service.

Staghorn and Elkhorn Coral and their Critical Habitat are protected under the Endangered Species Act

Acropora Fact SheetAcropora Fact Sheet

Staghorn and Elkhorn Coral and their Critical Habitat live in the coastal waters surrounding the U.S. Virgin Islands, and they are protected under the Endangered Species Act.  NOAA has devoted many millions of federal dollars to programs which preserve these Corals, and the Nature Conservancy, working with NOAA,  has three project areas in St Croix coastal waters, recolonizing coral.

Coral reefs are among the most diverse, biologically complex and valuable ecosystems on Earth. Often called rainforests of the sea, coral reefs provide economic and environmental services to millions of people as valuable areas of natural beauty, sources of food, jobs and revenues, recreation and tourism and shoreline protection.

“The United States has a significant national interest in protecting its coral reef ecosystems. The area of coral ecosystems within 10 fathom and 100 fathom depth contours respectively in tropical and subtropical water of the United States is 36,813 sq km and 143,059 sq km” (Rohmann et al. 2005). The majority of U.S. coral reefs making up the referenced areas are within State and Territorial waters.

Green Turtles, Hawksbill Turtles and Leatherback Turtles are protected by the Endangered Species Act

Green Turtles and Hawksbill Turtles reside in the waters surrounding St. Croix, and do move around, so this 72 million gallons of raw sewage is now in their home. Green Turtles and Hawksbill Turtles depend upon turtle grass and sponges for food, but cannot eat if their food is tainted by raw sewage. Leatherback turtles, also protected by the ESA, swim in and lay their nests of eggs on the shoreline of several areas in St. Croix.

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.

(a)  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.

DPNR, DEP, DEE, CZM and VIWMA  May All Be Found in Violation of the ESA

VIWMA must face the consequences of its actions and fully comply now with Federal District Court orders. Neither DPNR, DEE  nor the DEP stopped the dumping either, until 2 months later, at 1.2 million gallons per day.  These agencies have been violating federal laws and their own mandates for decades, and no one has been prosecuted for these illegal actions. Unless strong criminal prosecutions are brought, the dumping will continue

The Virgin Islands Department of Planning and Natural Resources is a member of the U.S. Coral Reef Task Force, as is Governor deJongh. Clearly, DPNR is not following its mission, neither is it 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 choosing not to actively enforce, is actively condemning the endangered species.

Janice Hodge, Director of the Virgin Islands Coastal Zone Management, is a member of the U.S. All Islands Coral Reef Committee, whose mission is:

As official representatives of our Governors for the coral reef initiative, we will strive to elevate awareness of coral reef issues, develop local capacity and partnerships; implement actions in a coordinated regional voice; develop policy and advocate for jurisdictional needs; and coordinate bottom-up, locally-grown initiatives to ensure long-term sustainable use of coral reefs.

        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  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.

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 EPA is in Violation of the Endangered Species Act

During the 2 month period of dumping, was the EPA working closely with NMFS and FWS? Did those agencies know, and allow this dumping to continue?

Section 7(a)(2) of the Act requires Federal agencies to satisfy two standards in carrying out their programs. Federal agencies must ensure that their activities are not likely to: (1) jeopardize the continued existence of any listed species, or (2) result in the destruction or adverse modification of designated critical habitat.

Section 7(a)(4) requires Federal agencies to confer with the Services on actions likely to jeopardize the continued existence of any species proposed for listing or result in the destruction or adverse modification of any proposed critical habitat.

Thus, the EPA, which has given a permit to VIWMA, and regulates VIWMA, is required to insure that VIWMA’s actions are not likely to jeopardize the Corals and Turtles in question, or adversely modify their Critical Habitat. Has anyone been researching the effect this raw sewage has had on Long Reef?

If the EPA knew on or before January 17, 2010, that federal agency had an affirmative duty to consult with NMFS, before the dumping. Once the dumping commenced, the EPA had an obligation to stop VIWMA, immediately, pursuant to the ESA, President Clinton’s Executive Order, and the “no-take” designation of the Buck Island Reef National Monument marine reserve.

The NMFS Director, Office of Protected Resources can pursue the need to consult with the action agency (EPA). The Services cannot force an action agency to consult. However, if the proposed action results in take of a listed fish or wildlife species, the matter should be referred to either the FWS Law Enforcement Division and the Office of the Solicitor, or the NMFS Office of Law Enforcement and the Office of General Counsel – depending upon which species are

involved.

Additionally, if the action agency requests consultation after-the-fact, that

consultation cannot eliminate any section 9 liability for take that has occurred already.

Violating the Endangered Species Act has Civil and Criminal Penalties

SEC. 11. 16 U.S.C. 1540 (a) CIVIL PENALTIES.—(1) Any person who knowingly violates any provision of this Act, may be assessed a civil penalty by the Secretary of not more than $25,000 for each violation. Each violation shall be a separate offense.

Public Law 100-478, enacted October 7, 1988, (102 Stat 2306) included the following provisions:

• Redefines the definition of “person” to clarify law applies to municipal corporations.

The court shall hear such action on the record  made before the Secretary and shall sustain his action if it is supported by substantial evidence on the record considered as a whole.

(b) CRIMINAL VIOLATIONS.—(1) Any person who knowingly violates any provision of this Act, of any permit or certificate issued hereunder, or of any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D),

(c), (d) (other than a regulation relating to recordkeeping, or filing of reports), (f), or (g) of section 9 of this Act shall, upon conviction, be fined not more than $50,000 or imprisoned for not more than one year, or both. Any person who knowingly violates any provision of any other regulation issued under this Act shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than six months, or both.

(e) ENFORCEMENT.—(1) The provisions of this Act and any regulations or permits issued pursuant thereto shall be enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, or all such Secretaries. Each such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency or any State agency for purposes of enforcing this Act.

(2) The judges of the district courts of the United States and the United States magistrates may within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this Act and any regulation issued thereunder.

Conclusion

The federal and local agencies must consult with NMFS, NPS and the U.S. Coral Reef Task Force and ensure that VIWMA has all its equipment working, now, before even more raw sewage is dumped on a reef. NMFS and DOI would then decide what civil and criminal charges to level, against which people, boards and agencies.

The EPA has a mandate of overwhelming transparency, and thus has an obligation to keep U.S. citizens, particularly Virgin Islanders, informed and aware of its actions from January onward.  I suggest that a group be formed, comprised of representatives from all agencies involved, AND citizens and environmentalists, to decide, then take action, on what to do now. Should VIWMA be privatized? Should the EPA step in and run the facility? What can we do to clean up and actually start protecting our reefs?

Sincerely yours,

Susan K. Wolterbeek