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June 28th Supplement Reply to AUSA Frankel





CIVIL No.   1984-104



Susan K. Wolterbeek, Pro Se, Intervenor


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


         This Intervention is timely, appropriate, and very narrow in scope. The focus of the Complaint in Intervention are the actions of VIWMA, DPNR and the EPA from the prior Court Order of 3/18/10 until the present, and then focuses on what the EPA has failed to even consider- what needs to be done right now to save our coastal waters, human health, endangered species and tourism on an emergency basis and on a long term basis.

This is an emergency situation, given the recent enormous amount of dangerous pollutants dumped into VI coastal waters, proven by evidence submitted to the Court in Exhibits 2-5, 26, and the underlying Non-Compliance Reports.  The evidence shows that VIWMA has dumped raw sewage for 128+ days since 3/18/10. For 14 months VIWMA did not purchase the court ordered pumps for Figtree and other stations. VIWMA has not been issuing Public Notices pursuant to Court Order. The evidence shows that the EPA was fully aware of all of the above, through my correspondence and meetings with the Regional Administrator and other officials, and that the EPA refused to  file for Contempt, sanctions or Receivership, or notify NMFS/NOAA, as federally mandated by 50 C.F.R. § 402.14(a).

AUSA Frankel contends that this Citizen’s Suit through Intervention delays the case at hand, and should be brought separately. AUSA Frankel is endeavoring to shut out Citizen’s involvement when it is most needed. Frankel does not dispute the fact that Citizens are not being given Public Notice according to federal law and this Honorable Court’s Order when VIWMA dumps raw sewage into our coastal waters.  Frankel and the EPA have done nothing to ensure that the 3/18/10 Court Order was enforced, despite my many letters to the EPA proving VIWMA’s continuing violations. Frankel does not dispute the fact that citizens cannot get basic financial information from VIWMA, a public utility. Frankel does not dispute the fact that the EPA will not divulge the quantity involved in this 128+ days of dumping raw sewage since the 3/18/10 Court Order, despite numerous Freedom of Information Act requests.  USVI Citizens are not being protected by the EPA in this case, yet AUSA Frankel is attempting to shut Citizens out of this case, even though Citizens have a right, by federal law, to be a party to the case.

The facts of this case are not disputed; what the Citizen’s Suit brings to this case are the practical solutions which will, for the first time, offer safeguards for the people and the endangered species of the U.S. Virgin Islands. According to the EPA itself, 204 USVI beaches are already currently “impaired”.  It is unconscionable for the EPA to ask that a separate action be brought, wasting critical time and the limited resources of this Citizen, allowing the coastal waters, endangered species and our economy to be further detrimentally impacted and polluted.

Under Section 7(a)(2) of the Endangered Species Act, federal agencies must consult with [NMFS/NOAA] to determine whether their actions will jeopardize listed species’ survival or adversely modify designated critical habitat, and if so, to identify ways to modify the action to avoid that result. 50 C.F.R. § 402.14. The EPA and AUSA Frankel refuse to enforce the 3/18/10 Court Order, and refuse to follow federal laws designed to protect Citizens and Endangered Species, yet Frankel, on behalf of the EPA,  asks the Court deny this Citizen’s right to be a Party to the suit after grossly understating, thus grossly misstating, the severity of the raw sewage bypasses in his April 10th filings.  [Please review Exhibit 10].


         There is no need for discovery beyond VIWMA’S current financial records, salaries, contracts and subcontracts, annual financial reports and current conditions and reports of the waste treatment facilities, all of which are in VIWMA’s possession and simply need to be photocopied and sent to Intervenor.

Most of the evidence in this case has already been presented to the Court. The 165 Non Compliance Reports of raw sewage bypasses since 3/18/10, [Exhibits 2, 26] along with newspaper articles and admissions by parties reveal current, ongoing violations of federal laws and court orders by VIWMA, DPNR and the EPA. These violations are before the Court now,  and Contempt, Receivership, Sanctions and Joinder of the other federal agencies are  the most logical, safest, and most practical solutions for resolution of this case.


           Now, with the overwhelming evidence before the Court, and continued inaction by the parties, the time has come to take corrective action, namely Contempt, Receivership, Sanctions, and Joinder of the other federal agencies affected by the dumping of raw sewage into coastal waters and onto endangered species. This intervention does not delay this case at all; rather, the Intervention offers sound, appropriate solutions to the violations which the defendants have committed, and are currently committing.


         Environmental receiverships began when the City of Detroit, the City’s Water and Sewerage Department and the State of Michigan were sued by the United States Environmental Protection Agency for violating the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. United States v. City of Detroit, 476 F. Supp. 512 (1979). The parties entered into a consent judgment, but despite limited progress “failed to comply with the judgment of th[e] court and federal law governing water pollution.” Id. at 520.

The court sua sponte ordered the appointment of a receiver “to secure compliance with the law and th[e] court’s judgment.” Id. The court recognized that such authority to appoint a receiver was “founded in the broad range of equitable powers available to [a district] court to enforce and effectuate its orders and judgments.” Id. See also United States v. Acadia Woods Add. #2 Sewer Co., 41 F. Supp. 2d 632 (W.D. La.1999) (appointing a receiver to run a wastewater city treatment plant to ensure compliance with the federal Clean Water Act), and Town of Greenwich v. Department of Transportation, 10 Envtl. L. Rep. 20178 (1980), which appointed a receiver to take control of the Connecticut Department of Transportation (“DOT”) to close down a power plant for violating air pollution regulations promulgated pursuant to the federal Clean Air Act 42 U.S.C. § 7401 et seq.

Similar to the USVI, Guam’s Waste Management and local government were in violation of federal laws for 22 years, utilizing an unlined dump and ignoring court orders. In 1986, the EPA issued an administrative order directing the island’s Department of Public Works (DPW) to cease the discharge of leachate from the Ordot Dump.

Twenty-two years later, the Ordot Dump, the island’s only municipal site for solid waste disposal, continued to leach contaminants, posing a continuing environmental and health hazard. A Consent Decree was approved by the U.S. District Court of Guam in February 2004, yet compliance with its mandates were minimal. Finally, on March 17, 2008, the District Court of Guam appointed a Receiver to achieve the government’s compliance with the Clean Water Act as set forth in the Consent Decree.

The case at hand is similar and just as compelling as that of Guam, for the Waste Management Authority of the USVI has to 2 unlined dumps, and in addition, for  27 years has been ignoring federal court orders and even currently is continuing to dump raw sewage and pollute USVI coastal waters. Clearly, Receivership is the appropriate solution which will enable the people of the US Virgin Islands to have a waste authority which will fully comply with federal and local laws.  In addition to the wastewater issues, the USVI would then have a waste authority which would close the unlined dumps, begin comprehensive recycling and composting, and would have marine pump out stations, finally bringing the USVI into compliance with many other federal statutes. It is astounding that the EPA should oppose this Intervention, when these are all EPA goals.


         Although the EPA has had this case for 27 years, the EPA has made no effort or provisions to clean up our coastal waters after all this dumping of raw sewage, or to consult with National Marine Fisheries Service [NMFS] (a division of the National Oceanic and Atmospheric Administration) or the Fish and Wildlife Service, in continuing violation of the Endangered Species Act, 16 U.S.C. §1536(a) and §1538. The Department of the Interior oversees the Endangered Species Act. In addition, a new National Park, Salt River National Park of St. Croix, has been directly affected by the raw sewage discharges, and Buck Island National Park may be affected, thus the National Park Service is a relevant and appropriate party or consultant to this case.

I specifically cited the numerous Endangered Species violations by the defendants in person to Regional Administrator Enck on May 6, 2010 and in my letter to Regional Administrator Enck dated May 16, 2010, [Exhibit 6]. Therefore, the EPA has been given ample notice of its violations, yet continued to violate the Endangered Species Act.

Further, I detailed to Administrator Enck the violations of President Clinton’s Executive Order 13089, giving all coral the same protections as those found in the Endangered Species Act. Nevertheless, even though this U.S. citizen came forward detailing to the EPA many proofs of ongoing violations of federal and criminal laws designed to protect the citizenry and endangered species, the EPA took no action to stop the dumping, verify that VIWMA was following the very specific court orders of 3/18/10, or consult with NMFS pursuant to Section 7 of the Endangered Species Act and 50 C.F.R. § 402.14(a).


        In regard to wastewater treatment in the USVI, defendant EPA’s function, as a federal agency, is to regulate VIWMA and DPNR. The Endangered Species Act mandates that the EPA “…shall in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary… to be critical.” 16 U.S.C. § 1536(a)(2).

The ESA establishes an interagency consultation process to assist federal agencies in complying with their Section 7(a)(2) duty to guard against jeopardy to listed species or destruction or adverse modification of critical habitat.  An agency must initiate consultation under Section 7 whenever its action “may affect” a listed species or critical habitat. 50 C.F.R. § 402.14(a).

An agency is required to review its actions “at the earliest possible time” to determine whether the action may affected listed species or critical habitat. 50 C.F.R. § 402.14(a). Frankel would have all parties and the endangered species endure more months of pollution and waiting for several months more, under a separate action, when this Court could and should order the EPA to immediately begin the consultation process now.

The scope of agency actions subject to consultation are broadly defined to encompass “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.” 50 C.F.R. § 402.02 (definition of “action”).

To initiate consultation, the action agency (here, the EPA) must assess the impacts of the action on listed species and their habitat and provide all relevant information about such impacts to [NMFS/NOAA]. 50 C.F.R. § 402.14(c).  If the action agency has determined that the action is “likely to adversely affect” the listed species, the agencies must conduct a formal consultation. Id. at §§ 402.02, 402.14(a).

The end product of formal consultation is a biological opinion in which NMFS/NOAA determines whether agency action will jeopardize the survival or recovery of listed species or will destroy or adversely modify the species’ critical habitat. 16 U.S.C. § 1536(b). To make this

determination, NMFS/NOAA must review all relevant information and provide a detailed evaluation of the action’s effects, including the cumulative effects of federal and nonfederal activities in the area, on the listed species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-(h). NMFS/NOAA has a statutory duty to use the best available scientific information in an ESA consultation. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). If NMFS/NOAA determines that the action is likely to jeopardize the species, the biological opinion must specify “reasonable and prudent alternatives” that will avoid jeopardy. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(h)(3). NMFS/NOAA must also formulate discretionary conservation recommendations to reduce or minimize the action’s impacts on listed species or critical habitat. 50 C.F.R. § 402.14(g)(6).      “[R]easonable and prudent alternatives” are alternative actions identified during formal consultation that (1) can be implemented in a manner consistent with the intended purpose of the action, (2) can be implemented consistent with the scope of the action agency’s legal authority, (3) are economically and technologically feasible, and (4) would avoid the likelihood of jeopardizing the continued existence of listed species and/or avert the destruction or adverse modification of critical habitat.

Not only does a Section 7(a)(2) consultation assist the action agency in discharging its duty to avoid jeopardy, but the biological opinion also affects the agency’s obligation to avoid the “take” of listed species. Under ESA Section 9, 16 U.S.C. § 1538(a)(1)(B), it is illegal for any person, whether a private or governmental entity,  to “take” any endangered species of fish or wildlife listed under the ESA. “Take” is defined to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct. Id. at § 1532(19). NMFS/NOAA has defined “harm” to include “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102.

Unless the requested relief is granted, Plaintiff’s interests will continue to be injured by EPA’s failure to consult with NMFS/NOAA, as well as by the ongoing harm to these species and their habitats as a result of the ongoing pollution.

The injuries described above are actual, concrete injuries that are presently suffered by Plaintiff and will continue to occur unless relief is granted by this Court. These injuries are directly caused by the Defendants’ failure to consult with NMFS/NOAA and to then take action to ensure that their actions do not affect listed species. The relief sought herein, EPA’s compliance with the ESA, would redress Plaintiff’s injuries as to these issues, and Plaintiff has no other adequate remedy at law.


        This Citizen’s Suit is critical to saving USVI coastal waters. None of the defendants, including the EPA, are protecting Citizens and Endangered Species. None of the defendants have been in mandatory consultation with NMFS/NOAA, as required by the Endangered Species Act. None of the defendants are upholding or enforcing this Honorable Court’s orders. Citizens and Endangered Species desperately need this Honorable Court to grant this Citizen’s Suit/Intervention, to grant Receivership, and to uphold the enforcement provisions of the Clean Water Act and Endangered Species Act.

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

Territory of the US Virgin Islands

District of St. Thomas and St. John

Sworn to before me by Susan K. Wolterbeek this 5th day of July, 2011.

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