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

AFFIDAVIT IN SUPPORT OF MOTION TO INTERVENE

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

VIWMA’s REPORTS REVEAL 77 DAYS OF RAW SEWAGE BYPASSES SINCE 3/18/10

I 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 US Virgin Islands. I snorkel and swim in USVI territorial waters.

Pursuant to the Freedom of Information Act (FOIA), on March 28, 2011, I requested of  the EPA the start dates, stop dates and rate of flow for all raw sewage bypasses in the USVI from 1/1/10 until the present. [Exhibit 14].  The EPA furnished 186 Non-Compliance Reports,  150 of which were issued since the 3/18/10 Court Order. A Summary of these reports is at  Exhibit 2.

These Non-Compliance Reports as a whole are available to the Court, should the Court  wish to review them. A few individual Non-Compliance Reports are at Exhibits 15-18,  and 23-25.

The total days of  raw sewage bypasses between 3/18/10 and 3/23/11 reported by VIWMA exceeds 77 days. Even so, based upon the reports themselves and newspaper articles,[Exhibits 3-5] there were at least 6 additional days of bypassing raw sewage, and this number is likely to be significantly higher, as several of the reports do not give stop dates, and some reports are missing entirely.

On August 30, 2010 NaNa Gut had an “Ongoing “ bypass, [Exhibit 17] as did Weymouth Rhymer Pump Station on 1/4/11 [Exhibit 18]. Many pump stations were not working during Hurricane Earl, and state “n/a”, instead of a stop date. [Exhibit 2]. All of these “Ongoing” and “n/a”  bypasses were counted by me as only one day each, thus the actual count of raw sewage bypass days may be significantly higher.

VIWMA DID NOT FILE ANY NON-COMPLIANCE REPORTS FOR A MAJOR BYPASS

 On 4/28/10, the VI Daily News reported that VIWMA started pumping raw sewage over Long Reef on Saturday, April 24, 2010, and that the bypassing was expected to continue for the next five days, while a 4/29/10 report stated the dumping had ceased on 4/27. [Exhibit 3].  This major bypass was not included in the 186 Non-Compliance Reports of 1/1/10-3/23/11 furnished by the EPA. Assuming the EPA gave me all of the Non-Compliance Reports which VIWMA prepared, then there are no Non-Compliance Reports for a major bypass, in clear violation of the TPDES Permit and the Clean Water Act.

VIWMA HAS REFUSED TO GIVE REQUIRED PUBLIC NOTICE OF SEWAGE BYPASSES

 I have reviewed the Avis and VI Daily News publications, and VIWMA did not give  notice of raw sewage bypasses in these publications according to the TPDES Permit or  3/18/10 Court Order. For example, although there were bypasses at LBJ for at least  4/24/10-4/27/10, at a critical time, during Ironman Triathlon practice swims and just before the  5/2/10 Ironman Race itself, Public Notices were not published every day, and apparently the  beaches were not posted either. There were newspaper articles written, on 4/28 and 4/29, after  the fact, but no public notices in the papers during the dumping of raw sewage. This event was  was barely a month after last year’s Court Order of 3/18/10 directing VIWMA to give Public  Notices as mandated in the TPDES Permit.

From January 27 through February 9, 2011, VIWMA conducted a 13 day, 11.5 hour raw  sewage bypass at LBJ for a new force main. This major planned  bypass should have been  therefore reported in public notices, every day, from January 26, 2011 the day before the bypass  was to commence, through February 10, 2011, the day after the bypass was completed. Instead,  there was a newspaper article in the  VI Daily News on 2/5/11, and one Public Notice in the Avis  on 2/9/11. [Exhibits 19-20].

VIWMA submitted a Non-Compliance Report for January 4, 2011, stating Weymouth  Rhymer station in St. Thomas was having an “Ongoing” bypass, [Exhibit 18] but nothing was  reported in the VI Daily News on January 4^th or January 5^th, 2011.  Similarly, there were 13 Non-Compliance Reports for 13 different areas and pump stations on 8/30-8/31, including an  “Ongoing” bypass in NaNa Gut, [Exhibits 2, 17] yet there were no Public Notices in the VI  Daily News for those dates.

There were 2 different bypasses from 2/24/11 to 3/2/11, one broken force main adjacent to  Hovensa, of 6 days 6 hours, and one Figtree broken force main of  5 days 22 hours [Exhibits 23-24] . Notice was published in the Avis from February 27-March 4 for the Hovensa force main  break, [Exhibit 21] but the notice was run without spacing, in a single column at the end of the  classified ads, not a boxed notice such as the notice of Exhibit 20, which made it difficult to read  and easy to overlook.

During this past month, April – May, 2011, LBJ has been bypassing since sometime in  April. Again, this dumping of raw sewage occurred during the practice swims or even during the  Ironman Triathlon Race itself. VIWMA published identical Public Notices on April 27-29, in the  VI Daily News, [Exhibit 4] but the notices do not give start or stop dates, and VI Daily News  May 4, 2011 newspaper article states that the impacted line “currently is causing an overflow of  sewage in the area”  [Exhibit 5], indicating that the discharge was still ongoing as of May 4,  2011. (If so, the Ironman Triathletes were downstream of LBJ, while LBJ was bypassing raw  sewage during their 1.5 mile swimming race at Christiansted Harbor on May 1, 2011.)

 Therefore, the public has no idea when the dumping of raw sewage has started or stopped,  or if it is still continuing today. That same article states that Figtree was bypassing raw sewage into Cane Garden Bay on May 3, 2011. Indeed, AUSA Frankel cited a May 10, 2011  Non-Compliance Report showing a bypass, which was not reported in the VI Daily News. When I questioned the Media Relations Coordinator of DPNR about the lack of posting  warning signs on beaches, he confirmed that DPNR does not enforce that requirement, and the  excuse for violating Court Orders was that the hotels don’t like the warning signs. When asked  for the rationale of not posting on non-hotel beaches either, the response was that such posting  would not be fair. Clearly, public safety is not the priority, or following Court Orders.

 VIWMA VIOLATED THE 3/18/10 COURT ORDER ON FIGTREE PUMP STATION

 On 3/18/10, this Honorable Court ordered that VIWMA keep operational the Flygt house  pump  borrowed from LBJ Pump Station and installed at Figtree in March, 2010. Further,  VIWMA was ordered to get another house pump for Figtree by 3/23/10, and that both pumps  were to be properly maintained and kept operational.

Despite these very specific court orders, according to the 4/11/11 Declaration of Pedro  Modesto, of the EPA, as of March 16, 2011, a year after the Court Order, only the one Flygt  house pump borrowed from LBJ is working at Figtree. The EPA’s Final Submission states that  the 8” Thompson Diesel Back-Up Pump being used at Figtree is “still not able to pump the entire  flow coming into the station.” This statement implies that a partial bypass may be occurring now.

 VIWMA VIOLATED THE COURT ORDER ON CANCRYN PUMP STATION

The Cancryn Station pumps 2.5 million gallons of sewage per day in St. Thomas. The 3/18/10 Order specified that VIWMA maintain the 10-inch pump allegedly in operation at that time, and that VIWMA further certify that the Cancryn pump station have both a six-inch and a four-inch auxiliary diesel back-up pumps in working order.

VIWMA submitted its certification to the Court on March 23, 2010.  However, in a VI Daily News article of April 16, 2010, several weeks later, May Adams Cornwall, the Executive Director of VIWMA is quoted, stating

“St. Thomas’ Cancryn pump station – the island’s main station-A 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.”  [Exhibit 22].

 Further, VIWMA represented during the March 2010 hearing that it would completely  upgrade Cancryn Station using EPA or Dept. of the Interior (DOI) funds. Regardless, on March  16, 2011, a year later, VIWMA admitted to the EPA that it has not begun to upgrade the station,  replacing or repairing pumps and valves, according to the EPA Submission of April 11, 2011.

VIWMA VIOLATED THE COURT ORDER ON AUXILIARY PUMPS

 The 3/18/10 Court Order also specifies that 2 auxiliary diesel pumps shall be operational on  St. Croix, by March 26, 2010 (and remain operational). VIWMA avers that the Figtree Diesel  Pump, the LBJ Diesel Pump, and the 6″ Thompson pump used to pump waste over Long Reef  were all operational. In contrast, according to the 4/11/11 Declaration of Pedro Modesto, of the  EPA, these pumps have only been intermittently operational since the Emergency Hearing.  VIWMA reported in early September, 2010, that all three of these backup pumps were non-operational, and in October, 2010 two of these pumps were not operational. These pump failures  appear to coincide with 8 days of raw sewage bypasses commencing on 9/1/10, as shown by the  Summary of Non-Compliance Reports, Exhibit 2.

 THE EPA IS WITHHOLDING FROM THE PUBLIC THE QUANTITY OF RAW SEWAGE BYPASSED INTO COASTAL WATERS

 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. Since the Non-Compliance Reports were incomplete, I renewed my FOIA request to the  EPA several times, urging the EPA to furnish to me the start and stop dates and rate of flow for  all raw sewage bypasses, so that I could fully present this evidence to the Court. [Exhibits 8-12].  The EPA has not supplied any further information beyond the Non-Compliance Reports  previously furnished, even though the EPA was to furnish this data on or before 4/18/11.

Further, it appears from remarks by EPA personnel and the reports themselves that the  EPA redacted the flow quantity from the Non-Compliance Reports before furnishing them to me.  Neither the EPA attorneys nor the FOIA Officer for Region 2 with whom I have consulted have  claimed this information is privileged, or given any reason or excuse for failing to comply with 5  U.S. Code §552.

THE EPA GROSSLY UNDERSTATED RAW SEWAGE BYPASSES TO THE COURT

Although I have beseeched the EPA repeatedly to do so, the  EPA will not even alert the  Court to the massive raw sewage bypasses which have occurred since the 3/18/10 Court Order.  [Exhibits 10-12]  Indeed, the EPA’s submission of April 11, 2011 grossly understates these  bypasses.

The EPA does not tell the Court Figtree had bypasses in February and March, 2011 of 5  Days  22 hours and one (by Hovensa) of 6 Days 6 Hours. The EPA mentions a Barren Spot  bypass of 3 days, while the bypass of 3/13/11 – 3/23/11 was actually for 10 days.  Barren Spot  had 18 days 18 hours 30 min. of bypasses, from 3/18/10-3/28/11 in addition to however long  Barren Spot was bypassing during Hurricane Earl.

The EPA mentions some small bypasses by Mon Bijou and Campo Rico pump stations, but left out a 4/10/2010-4/13/2010 3 day bypass at Mt.Bijou. Other Pump Station Bypasses not  mentioned by the EPA: Lagoon Street PS 3 days 22 hours,  Humbug II PS 5 Days 3 ½ Hours, NaNa Gut PS 3 Days 6 Hours. Weymouth Rhymer PS and NaNa Gut had bypasses listed as  ONGOING, without any further information, and throughout the territory many pump stations  were out during Hurricane Earl, commencing 8/30/10, without mandatory stop dates. [Exhibits  1,2, 17, 18].

The agency failed to report the major bypasses of LBJ Pump Station. Since Figtree has LBJ’s Flygt pump and Barren Spot has LBJ’s Back-up pump, it is no surprise that LBJ has had  bypasses from 4/24/10-4/27/10, 9/8/10-9/11/10 and 1/27/11-2/9/11, over 19 days of dumping  raw sewage over Long Reef, in addition to the bypass occurring during April-May 2011,  or still Ongoing, as mentioned above [Exhibits 1-5, 19-20].

I declare under penalty of perjury that, based on information personally known to me,  information provided to me by persons at the EPA, DPNR and VIWMA, and my review of  newspaper articles pertaining to this matter, the foregoing is true and correct to the best of my  information and belief.

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