Petition — Schwarz v. Coastal Resources Management

"eww Vewy

FILED

JUN 6 1983 —

No. & ? ty 1 9 9 | ALEXANDER L. STEVAS,

CLERK

anaes

In THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1982

CATHERINE ELIZABETH SCHWARZ

Petitioner,

VSe

COASTAL RESOURCES MANAGEMENT, ET AL.

Respondents.

RHR HRHEEHEHHRHHRHEHHHHHHHHHEEH HHH H

PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

ttt tee eee eee eee ee Se ee Se SS

CATHERINE ELIZABETH SCHWARZ, PRO SE

PRESIDENT, CLEAN COVE COMMITTEE, Inc.

374 SRA VIRY DRIVE, WARWICK,R.I. 02886

Tel. 12401=-738 7648

QUESTIONS PRESENTED

1. Why,when another area rejected this

sewage pumping station, as they have the

right to do, is it than forced on our

area, but we aren't allowed to reject it,

even though the other side is where it is

needed to help clean up their polluted

water?

2. With clean water so vitally import-

ant, why haven't the courts below looked

into these fraudulent permits 2nd stress

the fact that clean water should be kept

clean, by confronting the violators and

making them mend their ways?

de Can a citizen be white,and of a maj-

Ority race and born in United States have

some equal and civil rights, also?

4. Our rights have been violated, both

civil and Constitutional, crimes have

been committed against us, there zsre re-

medies in the law,will it be implemented?

5. Does using over 2 million dollars of

Clean Water Act Funds to bring millions

Of gallons of sewage to clean water seem

like an atrocious waste of your money?

6. Petitioner has Expert Testimony and

Clean Water Act needs publicity, can she

be allowed an Oral Argument.

TABLE OF CONTENTS

Questions presentedesecereccccccssee 1

Opinion belOWsceceoceceeeseADpendix 1A

Jurisdictionecccecccccccccccccscccees

Constitutional provisiOnSecececeseee 2

Statement of this CaSCececcecececess 3D

SUMMALY ccccccecccceccececceccesoeeue D5

Errors Of lower courtSe..cleAgleAgSeAyIeA

ee ee eee ee ee eee ee ee ee

TABLE OF AUTHORITIES

American Frozen Food Institute v.

eg. ca nkwnechenceeunceecuun

Com. Of Mass. v. U.S. Veterans

Bes it eet ON. Cg. cc ccenecceceecuck

Jones Falls Sewage System v.

ig ag PR NTE eR a ee ey |

Loveladies Ve BRAGDsi accocessvcchehs Dk

Marathon Oil COe Ve BPAcccucsecenes Wek

Montgomery Environmental Coalition

Ve nce bees aneeeeee clerk

Save Our Sound v. Callaway...28.A,29.A

U.S. ve Phelps Dodge CorpeceeeeeeecIeA

ii

TABLE OF AUT

iv ht » and related

law determined in this caSe€ee.

CPR Title 18 Ch. VI WRC Part 740.7

—- Fe f * 95 a

CFR " r*. = « 86714 ALL

we * +335 * #%4F COS " 2h0 ALL

oe + + = + w 236,236

CFR * " " " " App.D.Pg. 508

cw * mm © ££ RA Part 427 ALL

cee + * FF D Sec. 20.8

cm * + © #2 OF Part 51 ALL

ern © 616 06ChCUVE Civ Rte " «(705 All

ABBREVIATIONS USED 3 *

Water Resources Councilececcccecee WRC

Army Corps Of EngineerSeeecccececee COE

Environment Protection AgencyeeeeeEPA

Office of Federal Register.eceeceeeeOFR

Civil RightsececccccccccccceseceeCiv Rts

Coastal Resources Management Council.CRMC

Clean Water ACtecoccccecccerecceee WA

Fed. Emergency Management Agency..FEMA

Director of Environmental

Managementecececcoceee DEM

Ee i ©}

TABLE OF AUTHORITIES

Federal Water Pollution Control Act,

1972 and its Amendments, Clean Water Act'!77

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

CWA

Sec.tt5 ALL.

Sec.201.(e),(f),(g)(2)(A) ,(3),(4),(5),

Sec. 301.(1)(C). (6) ,(h) (3).

Sec.302. Water Quality Limitations, ALL

Sec. 335. " " Implementation, ALL

Sece 304. (a)(1),(A),(2)(B),(C),(D), (3),

(c)(h)(5)(B)(C)(D).

Sec. 505. Water Quality Inventory. ALL

Sec. 306. (b)(1)(A). ASBESTOS is a

carcinogenic,

Sec. 307.(a)(1), Sec, 317.(a),

Sece 309.(a)(1),(a)(2),(b),(c)(1) (2).

Sece401.(a)(1),(2),(5),(6)(d),

Sec.402.(b)(1)(A)(C) (i) (14) (iii) (b) (3)

(72.42),063),(k).

Sec.403.(2),(c)(1)(A)(B)(C)(E)(F),(2),

Sec. 30e.(5). Sec. 509. ALL sec, 5

Sec.511.(c)(1),(c)(2)(A).

Sec. 505.Citizen Suits. (a)(1)(ii)(A)(2:

(e),(f£)(1)(2)(5)(6),

iv

TABLE OF AUTHORITIES

This criteria has all been taken from the

"CLEAN WATER ACT SHOWING CHANGES MADE BY

THE 1977 AMENDMENTS, 95th Congress, 1st

Session, Committee Print, Printed for the

use Of the Senate Committee on Environment

and Public Works, Serial No. 95-12,

a a a a’

Clean Water ACtesee7,2eAydeAgheAy7eAsSeA,

9A, 10.A, 14.4, 19.A,27.A, 28.4.

Coastal Zone Management Actececcececrehe

BEAU CG cescceces 1O.A, 11.A, TeeAy 2 5eAe

Floodplain laws. .9e,22,23,2h, 26.A,27 A.

Water Resources, ,....!0,11,12,22,23.

(Civil Rights)

CPC ee ee ee eee re

Note; The same U.S. District Court issued

a different and conflicting verdict in C.A

#77-0374 before Judge Francis JeBoyle, for

the District of R.I. The Mayor of the city

was made accountable for the pollution.

Entered on page A-3 of Petitioner's

Preliminary Injunction Action C,A.80-1122,

Ve

CATHERINE ELIZABETH SCHWARZ

Petitioner,

VSe

COASTAL RESOURCES MANAGEMENT,ET AL.

Respondents.

PETITION FOR A DIRECT APPEAL

TO THE UNITED STATES SUPREME COURT

To the Honorable Justices of the

Supreme Court of the United States;

Your Petitioner, Catherine Elizabeth

Schwarz, respectfully prays for a direct

appeal of the judgment of the U.S, Court

Of Appeals for the First Circuit (Civil

Action 82-1534) entered March 8,1983,

rehearing denied, and appeal denied Jan-

uary 26,1983 by unpublished decision, and

dismissal by U.S, ba ctrict Court for 2.I.

entered June 30,1982; because this case

raises new and important legal issues,

OPINIONS

Opinions of lower courts are reproduced

in the Appendix.

JURISDICTION

This court's jurisdiction is invoked under

28 USC Sec. 2101, 12545 and 433 USC Sec.

1364, 1319 and 1365, this being a petition

arising from a false permit being issued

by the Respondents, causing a Citizen's

Suit to be brought against them. The pet-

ition is filed within 90 days of March 8,

1983.

2 Pp SIONS AT ISSU

ARTICLE IIT Sec.2,

The judicial power shall extend to all

cases, in law and equity, arising under

this constitution and the laws of the U.S.

AMENDMENT I.

Congress shall make no law abridging

the right to petition the government for

a redress of grievances,

AMENDMENT VII,

In suits at common law, where the

value in controversy shall exceed twenty

dollars, the right of trial by jury shall

be preserved.

a

AMENDMENT IX.

The enumeration in the Constitution,

of certain rights, shall not be construed

to deny or disparage others retained by

the people,

STATEMENT OF THIS CASE

This is a landmark case, so has no

precedent. To enforce the Floodplain Reg-

ulations and the prevention sections of

the Clean Water Act has not been an easy

task. The only case histories are ones

that attempt to control pollution once it

has started, that Petitioner has found,

This is a very important case because

clean water is important to all,our lives

depend on it, Yet, no one is implementing

this great body of legal work that is

positively beautiful in it's concept,

Petitioner feels greatly honored to

have been given this task to do, and it

has taken over 5 years of my life, so far

Eventually, the Truth will come out. The

technical maneuvers,used by the Respond-

ents to continually keep this case from

de

being properly judicated, will have to

come to an end. Though pollution has be-

come very profitable for the local pol-

iticians, they also need clean water. Po-

litical profiteers are doing the same

thing, falsifying documents, misrepresent-

ing certification, buying off lawyers,

ourying hazardous waste over aquifers,

putting nuclear and sewage plants on clean

water, everywhere. There is nowhere to

rune

Dr. Richard Brooks, Ph.D. of the En-

vironmental Law College at S. Royalton,

Vermont called me to congratulate me on

making legal history with C,A, 80-1479

and 80-0157, for Preliminary Injunction.

We were only a group of aggrieved

people that were the victims of an atro-

city and when we had done everything we

could think of on a local level, with the

run-around our only results, even at EPA

in Boston, the people started to get to me

and tell me they didn't have a permit and

he

and then when Respondents went for a per-

mit, the Respondents falsified the findings

of facts by saying; Brush Neck Cove was SB

water quality, closed to shellfishing, un-

navigable, that the project would not de-

grade the water quality or that the 750

gallons of diesel fuel would not change

the chemical balance of this body of water

even under most adverse conditions,

Other documentation stated that this

site was an A-10 zone, whereas, it is a

V-10 zone. The transcript of the Public

Hearing, which we got by going all the way

to Vermont and Maine, ignored our vote of

972 residents and switched our water qual-

ity,again.Wm. Adams, EPA Administrator in

Boston, comes from Maine. New York's Water

District Chief (with the high grade of

drinking water in the world) Richard Tisch

and Vermont's Water District Authority,

Michele Frome, also,wrote to us and told

us the proper procedures. Even California

sent us news clippings on Citizen Groups,

De

Petitioner received help from citizens

working in city hall, the state house, the

court house, the sewer commission, and now

has all the documentation to verify all

allegations. Judge Boyle said it was too

much for anyone to be able to read, so

Petitioner has slimmed it down to 41 Ex=

hibits. J, Decision for Permit by CRMC has

these false findings of facts, (the land-

scaping was omitted but later replaced in

specs for this project, when CLEAN COVE

mentioned that 7 ft. link chain fence and

3 strand barb wire was not the landscaping

picture presented to us, it is the only

. Obvious thing the layman can see and under-

stand, but it is only lipstick on the

corpse, and it is not why we are in court.)

Exhibits 2, through 5, Are the surveys

and maps of the R,I. Health Dept. showing

the water quality of both coves in ques-

tion, closures, names of the polluters,

and it shows the sewer project profiteers

graph, that ignored all the facts and re-

66

versed the problem area to our clean cove,

33 USC 1365 -- CITIZEN SUIT's (a)(A)(f)

gives the power to the citizen to bring a

Civil action for these acts of fraud in

the permit and certification system,

Lhd hhh EEC TT ere Te ree ee

On March 8,1978, an alleged Public

Hearing had only 3 residents of the aff-

ected area,and 2 other residents from out

Side the contested sewer pump site, pre-

sent. No one in the immediate danger area

had ever heard about this hearing or this

project. Petitioner found this out by go-

ing door-to-door. Mrs. Mary Jackman re-

quested that a petition be drawn up. It

was and she signed it. She lives directly

across from the sewer pump site. We had

Over 300 names in a week and went to City

Hall and confronted the Mayor Joseph Walsh

and City Planner Barbara Sokoloff. We had

every seat filled and the foyer and people

standing in the back and aisle, approx,

450 people there. Planner Sokoloff said

Ve

"Time was running out for Federal funds

let them get the money then they would

have time to draw up new plans and move

the pump."(Petitioner received a letter

from Ms. Sokoloff with these same phrases

and it is part of our documentation.)

Mayor Walsh sent us all to a meeting

with the Sewer Authority the following

night even though the Sewer Authority was

present at this meeting but would not

address us. The sewer authority again put

the people off by saying it was a private

meeting and they were sent home again,as

they arrived, many going right from work

without any supper. My husband and I, and

3 other residents had arrived early and so

had gone right in and upstairs. Reiner

Schwarz read the blueprints and saw no

overflow provisions. Fred Hoernle,chief

engineer for an International Co.,said,

"We have 2 overflows, Brush Neck and But-

tonwoods Cove"'., With that my husband left

knowing our last clean cove was to be des=

8.

troyed and we would get nothing but the

run-around from anyone there.

We continued with the petition and have

about 1,000 signatures and addresses of

people wanting the sewer pump plans re-

thought and alternatives looked into, as

the law requires. C,F,R, 33, Ch.Il, Sec.

240. Stat | Public 3 ‘an

ment in the Floodplain planning, since

the residents will be the victims of any

malfunction or flood, and the residents

do know the area better than people from

another area.or country.

The politicians here tried to pass a

law banning petitions. That was the only

action we got from this city, even though

our last shellfishing, finfishing and

bathing cove with grade "SA" water and

our Public Park is in it's center and is

the entire middle peninsula, The taxpayers

bought up that land when condos were men-

tioned in the past.We have 2 Public Parks

96

and the other one was threatened with sew-

age from one of our 86 sewage pollution

source points (as of 1980). There are

more now, We had the only clean beach

water tested safe for swimming. So the

politicians, ex-Gov. Phil Noel and his

group of "Section 8" condo-builders and

his totally stacked C.R.M.C. and D.E.M,.

with Warwick Chairman Barbara Colt, and

his other political appointees, just there

to say "tyes" to any scheme, 90% of them

not knowing anything about the environ-

ment, have now planned condos for the

Other polluted Old Warwick Cove side.

The problem is that the residents there

said they did not want their roads,trees,

grass and gardens dug up for the sewers

and they rejected the plan totally in Dec.

1977. That is when the sewer pump was re-

sited on our clean water, in total secr-

ecy, against the law and against our civil

rights. CFR. Title 18 ch. VI- Water Res-

sacdd, fan, 005.6 bh) ant fib.

10,

705.4 Discrimination prohibited,

(a) General. No person in the United

States shall on the grounds of race,color

Or national origin be excluded from part-

icipation in, be denied the benefits of,

or be otherwise subjected to discrimin-

ation under any program to which this

part applies.

(ii)Provide any service or other benefit

to a person which is different, or is

provided in a different manner from that

provided to others under the program;

(iii)Subject a person to separate treat-

ment in any manner relating to his re-

ceipt of any service or other benefit

under the progran;

(iv)Restrict a person in any way in the

enjoyment of any advantage or privilege

enjoyed by others receiving any service

or other benefit under the program;

(vii)Deny a person the opportunity to

participate as a member of a planning or

advisory body which is an integral part

of the program,

1,

(2) A recipient,in determining the type

of service or facilities which will be

provided,or class of people to whom,or

Situations in which,such services or

facilities will be provided,may not dir-

ectly or through contractual or other

arrangements,utilize criteria or methods

of administration which have the effect

of subjecting persons to discrimination,

Or have the effect of defeating or sub-

stantially impairing accomplishment of

the objectives of the program --

Of course,our area was totally dis-

criminated against because the majority

in this area are poor people, and where

the sewers are needed are rich people,

and,of course, the politicians reaping

the benefits of millions in government

funds for the Section "8" projects and

the sewer projects live on the other

polluted cove and the pollution on the

Old Warwick Cove was the mandate for

sewers. And our cove,Brush Neck and But-

12.

tonwoods is the only cove that had clean

water,classified "SA" and it's use safe-

guarded for shellfishing,finfishing and

swimming. The remaining Warwick coves are

all closed to shellfishing, because of

septic sewage run-offs. They are all "SB"

and "SC" grades of water, with marinas

and septic run-offs, except our cove with

"SA" water and our Public Park taking up

the entire center peninsula,Brush Neck,

The Clean Water Act mandates a survey

by the Health Dept. to find out where the

clean water is so it can be protected from

pollution;not as in this case,get the over

2 million in Water Pollution Control Funds

and use it to bring sewage to the only

clean cove and pollute that,too. But that

was exactly what the profiteering politi-

cians did. Phil Noel says "He laughs all

the way to the bank" when questioned by

the Providence Journal Bulletin Newspaper

about his vast "Section "8" holdings. He

is laughing and the rest of the state is

13

crying. With the highest cancer death rate

and ASBESTOS sewer and water pipes being

ouried in our ground water and ASBESTOS

fibers mixing with the sewage and being

dumped into our Bay and clam beds and sea

food chain. With the shellfishermen having

less clean water to shellfish in. The Bay

with over 90 sewage overflows is export-

img hepatitis in R.1. clams to N.Y. and

elsewhere. With people getting colon can-

cer,;and we are now only the second highest,

after being 3 years at the top for cancer

deaths. A Doctor on T.V. said these deaths

are caused by something ingested,

Warwick Water Dept. was about to bid

On more ASBESTOS water pines. The Clean

Cove Members wanted to have a sit-down

strike at the bid. The water pipes are of

a better material for the lucky ONe€S,y NOW.

Petitioner has ASBESTOS water pipes since

the Sewer Company broke our good water

pipes that were in the ground for over

14.

30 years delivering clean,drinkable water,

and substituted Asbestos water pipes.The

water was so gritty I thought the tea bag

broke. We started buying bottled water in

1979 after several attempts by the Water

Dept. to clear the lines and could not,

SO we pay 2 water bills and buy bottled

water. A neighbor has had 2 cancer oper-

ations in 1981.She was never sick and has

lived across from me for 37 years,

Eugene Montecalvo died of a heartattack

at age 55. The pump was built in his back

yard,as that is what he saw instead of

the seascape he had moved there for and

e years with the roads all cut up and

dirt and dust all through his home so he

could not even open a window on the hot-

test days. His last words to me was,''Do

not let them get to you. Try and keep

your health,"

They,the Defendants or Respondents,

have quadrupled my taxes,sent the minimum

housing to pester me about a shed and an

1s

antique car one of my sons wanted to re-

store. After several threats of fines,

etc. I let it go for $20 because I could

not take on another fight, along with the

I.R.S. wanting every cent I spend to get

this into court,of our own money,so they

can turn around and funnel into more

Asbestos pipes, pollution and tyranny.

Every time my husband gets a job some-

One calls up and asks where is he working

so he works very briefly and I work for

no pay whatsoever,

A heliocopter dropped a corrosive sub-=

stance on my roof, Rain took most of it

off but there are a few leaks in my roof

now from something.

The first day out with our petition to

move the pump a neighbor told me that the

entire area was going to be razed and it

meant burned and bulldozed away as condos

were planned for even where my home is, I

went to the Sewer Authority meeting and

told everyone there,what I was told. The

on

reaction was surprising, no one there de-

nied it. The Chairman of the Sewer Comm-

ission, Joe McKeever,said, "Kay, they're

not going to burn your house. You are one

of our best taxpayers." Several months

later Joe McKeever resigned.

The Chief Engineer resigned,Ralph Carr,

and purchasing Agent,Treasurer,and sever-

al more,in rapid succession.

Against our City Charter,Mayor Joseph

Walsh hired a man from Providence Mr.

Cimini,to put the sewer pump on our clean

cove. Mr. Cimini got sick and Lloyd Sher-

man took his place,from N. Kingston. He

put the contested pump in the ground dur-

ing the 4+ hours that we spent in Judge

Francis Boyle's chambers in Providence

U.S. District Court.When leaving home, the

site was deserted. On return,a truck and

crane were On the site and the pre-fab

pump was in the ground,

We had 450 people at a rally on that

site a week previously with Congressman

176

Edward Beard, who tried to get the Army

Corps of Engineers to justify their actions

in this cove, since 1977. They said they

had nothing to do with it,and put all the

blame on the EPA,and sent us a letter to

that effect.

But it was the COE that 0.K.ed this

sewer pump (Item 23o0f Exhibits) and has

continually falsified this cove as unnav-

igable,whereas, there has always been a

Channel and small boat club of the neigh-

borhood people limited to approx. 65 mem-

bers because of lack of space to put boats.

The boats are little and no one lives on

them. It is not a commercial venture,

The COE has had thousands of tons of

Sand put on our City Park Beach and among

the trees, suffocating the tree roots and

the grass. This type of action has been

gOing on for 6 years and gradually filling

and blocking the channel. They also intend

to put a breakwater inside the :ove to di-

vert water from sand,to homes on both sides

18.

of this intended breakwater. Outside the

cove,to divert a tidal wave would be help-

ful, especially since the contested sewer

lies right in the path of hurricane des-

truction. But they said they had no money

to protect that,after putting it in the

V Zone (Velocity risk base floodplain).

Everything built there has been destroyed

in the past.

As my neighbor predicted 6 houses were

burned,one a duplex,and were bulldozed

awaye Allinthis block. June 19,1981, my

tent was stolen from my front lot. The

following Friday night, June 25th, across

my yard came 2 strange men and one had a

paper bag containing a jug. The other had

2 brand new 2 by &'s and they were bolted

together with 4 new bolts. I was on my

porch with the bamboo shade down. I asked

them toget out of my yard. They advanced

to my porch steps. 1 ran down the steps

and was about 1 foot from them, By that

time a neighbor boy was at my side on his

19.

bike. Something was just about to happen

to me when I heard myself saying, "There

is a 44 Magnum aimed right at you", They

looked at the porch shades. They couldn't

see through them. Without saying a word

they went down the street. I called the

police and some neighbors. I was told

that they had gotten out of a red truck

above Brush Neck Av. and one was carrying

a paper bag and had a plaid jacket on and

they went down behind their waterfront

lots and disappeared walking south, an-

other lady said she saw them pour gaso-

line into a jug and put it in a bag, I

told the police and the fire marshall,

There have been no fires in this block

since then.

My husband had only gone to the store

and away 10 minutes when all this happen-

ed. They thought no one was home,and I

think the 2 by 4's were to push through

my porch screens, as they were the length

of my screens approx.7 feet.

20.

These are discriminating actions again-

st Petitioner and her Neighbors,

She has been the victim of 4 robberies,

2 break-ins, weird phone calls, and her

garden and trees under constant attack.

A city snow plow dug up grass and loam on

both sides of street in front of Petition-

er's home and hit garden gate with the

plow blade. This gate was only up 4 months,

This is happening because everyone loves

my garden and compliments me on it. My

weeping willow has been cut with an in-

fected saw and now my largest tree is dying

of galls. Petitioner took pictures of men

cutting tree and hopefully can do some-

thing about that, when this important is-

sue is remedied. The Respondents want

everything to look bad around here,

Representative Kevin McCarthy signed

our Complaint into Superior Court and has

been denied work and vilified. He became

ill, lost the election, been arrested,

been set-up, and threatened to be dis-

Cle

barred, suspended and sent to a mental

institution.

Redistricted right at the corner of

her street and put with the polluted Old

Warwick Cove, though Petitioner lives on

the waterfront of the clean, Brush Neck

Cove side. Petitioner now has "Taxation

without Representation", The only one we

could get any response from was our Rep-

resentative, and now we were cut off from

voting for him. Democratic Chairman, Rocco

Quattrochi,said he went by geographic lo-

cations. He said this on a T.V. show.

(4) The enumeration of specific forms

of prohibited discrimination in this pa-

ragraph does not limit the generality of

the prohibition in paragraph (a) of this

sectione (CFR Title 18 ch.VI Sec.705.4)

Petitioner believes this means every

one has equal rights and civil rights.

HH HH HH HHH HH HH HH HE EE

CFR Title 18, Ch.VI--Water Resources

Ssece/14.310 Public Involvement,

Loe

(b)Public involvement in EQ evaluation is

required for the following reasons;

(1)First,the Public is the basic source

of knowledge and opinions that are needed

to make the process work. Such knowledge

and opinions are especially critical in

determining public recognition and con

cerns.(see Sece714.411, 7140412, 714.433)

eee eee ee ee ee ee

CFR Title 33. Ch.II--Corps of Engineers

Appendix D of Part 230.6

Note; Even if an EAor EIS is not legally

mandated for any Federal action falling

within one of the following "categorical

exclusions", that fact does not exempt a

any Federal action from procedural or sub-

stantive compliance with any other Federal

law. For example, compliance with the

Clean Water Act is always mandatory.

Ce. Sewer pumping plants and appurtenant

facilities.

240,6 The Executive Order has an objec-

tive,the avoidance,to the extent possible,

of long and short term adverse impacts

associated with the occupancy and modifi-

cation of the base floodplain wherever

there is a practicable alternative. Under

C36

the Order, the Corps is required to pro-

vide leadership and take action to:

(a) Avoid development in the base

floodplain unless it is the only practi-

cable alternative;

(bo) Reduce the hazard and risk assoc-

iated with floods;

(c) Minimize the impact of floods on

human safety, health and welfare; and

(d) Restore and preserve the natural

and benefical values of the base flood-

plain. (See 240.5, 2W0.7, 240.14)

HERE MEHEEEHHHEHEHHEHHHHEHHEHHHHEHHHHHHHH HHH HH

Petitioner has requested compliance with

the E.O. 11988,since 1978, and has submit-

ted the Federal Register 6030,Floodplain

Guidelines, Feb. 10,1978, for implementing

this Executive Order, into every court,as

part of our documentation.

The Corps has reneged on it's responsib-

ility to protect the people living in

this Velocity wind, hurricane high-risk,

base floodplain and to save this last

clean water cove, Inquiries from our pre-

vious Rep. Edward Beard and lawyers to

the COE SHOW A TOTAL DISREGARD FOR THE

Cu.

“

CLEAN WATER ACT AND FLOODPLAIN PROTECTION,

The COE has been driving around here

for over 5 years. They sent Petitioner a

letter earlier then that asking if they

could use my waterfront lots as a storage

area for their gear,trucks or whatever.

This was a thoughtless request on their

part, with vacant lots on every side con-

taining only foundations of hurricane

victims' homes, that have long been aban-

doned, they decided they wanted to use

the only waterfront garden, which is fen-

ced in and has hundreds of flowers and

many flowering trees, a garden swing and

bird bath and lawn. Hundreds of people

walk by and compliment it and ask to take

pictures there.The former Mayor Eugene

McCaffery said he rode by and saw a veri-

table park that I had made here.

The COE has been on a Search and Destroy

mission ever since. A reservoir of sewage

On one side and mountains of sand at City

Oe

Park, on the beach and piled up between

the trees and hay bales scattered,helter

skelter, on the beach and in the water,

Petitioner's home and garden have been

under siege, dust and dirt from the sewer

pipe digging for 10 months,in front of my

home, smothered the leaves and 4 trees,a

mountain ash,a red bud, a pine and a peach

tree and over half of my roses died. I had

over 50 rose bushes. I plant more and mend

broken branches. A week ago a yellow tower

truck sped by,on the wrong side, and took

3 of my weeping willow branches and left

them broken in the street.

One of these trees alone is worth more

than $20. Yet, the lower court assumed

Petitioner had no equity in this case to

merit a jury trial. Petitioner has cashed

in 2 of her saving certificates of $1,000

each just for the Lminar nj Me)

into U.S, Supreme Court No, 80-1122.

Petitioner answered the attempt to re-

move from Jury-Trial, in a 7 page Rebuttal

26.6

Submitted into U.S. District Court 6 days

after receiving paper of Respondents att-

empt to dismiss case on res judicata from

Providence Superior Court where the CLEAN

COVE COMMITTEE,Inc. had gone for a Pre-

liminary Injunction and a Judicial Review.

Armando Monaco II, who was supposed to

present our case of the falsified permit

and the degrading of clean water which

would close our cove to the activities it

now enjoyed, instead took the same line as

the Respondents; that the Only danger would

be in construction and haybales would take

care Of that. Someone is pushing haybales

around here,

The Clean Cove Members were made to sit

in the outside hall, Petitioner went down

the side corridor and tried to go in with

Our alleged lawyer and the door was slam-

med in my face, The Presiding Justice let

me gO in and Judge McKenzie told me to shut

up,when I raised my hand and Dr. Richard Os

Benoit,Ph.D. was told to go home by Mr.

C7

Monaco, he wasn't needed. Mr. Monaco told

Petitioner, he was going to use Dr. Benoit

Expert Testimony as his own oral argument.

Armando Monaco II was throwing the case

and didn't need Expert Testimony for that.

This entire travesty of justice as written

in buttal and Judge's statement are en-

tered as Exhibits 2], and 32.

eee

The Constitution of the United States

triply guarantees a trial by a jury of

Ones peers,

The Respondents have,knowingly, falsi-

fied facts to get a permit,and money, from

the Water Pollution Control Act Fund and

under 33 USC 14319 Sec, 309 Federal Enforce-

ment and Judicial Relief is enumerated,

Fines and penalties for fraudulent permits

end misrepresentation of certification are

classified as "effluent limitations or

standards" under_33 USC 1365 Sec,505, (f)

mi £3 cant i

28.

When James Spaulding and then Gail

Chumura signed falsified documents, the

first thing to do was to get to these peo-

ple and get them to rectify their errors.

James Spaulding was Chief of Water Pollu-

tion Control in March of 1978. He told me

he would get the report, in his office,and

he came back reading it. He took this sur-

vey report of our cove and he put it in

his top desk draw and locked it. He stared

at me and closed the meeting. Petitioner

could have been aggressive and demanded a

copy of the report under the Freedom of Ir

formation Act, but she hoped that,now that

they both knew about the report,that he

would right the wrong he had done. He did

not. At the State-Wide Planning Board he

saw the mob of people, all angry and all

realizing they were being done in by the

bureaucracy. He told some he had a diploma

in something. He was followed to the steps

and asked if it was one of those diplomas

that you mail away for. He left the agency

296

leaving his false report for us,

James Fester took his place,and we had

a big meeting in Warwick,at Knight Campus,

We had maps,charts,experts,a large crowd

including a long table with over 30 shell-

fishermen, Mr. Fester said that meeting

was about Portsmouth and a Beach we had

never heard of. The people said we are all

from Warwick and are here to discuss the

planned sewer site. Mr. Fester said that

was all taken care of by the past Chief,

he wanted to get on to new programs, A man

stood up and said,"Am I to think you will

now go to Little Compton and discuss our

problems with about as much intelligence

as we can discuss theirs?"

Ron Marsella, a signator of our pet-

ition who lives in Buttonwoods and, also,

President of the program to revitalize

Providence and move the train tracks, told

Mr. Fester that the elevation was higher

at the tip of Oakland Beach and the lowest

was at a city owned area,out of the base

30-6

Floodplain,Velocity wind area and off our

Clean cove. Mr. Fester agreed with him as

they all looked at the elevation map that

one of the DEM staff had put up. So it was

agreed that the thousands allegedly spent

to find the lowest point had been a great

waste of the taxpayers money.

But what was anyone going to do about

it? No one did anything. Even the people

that called and wrote Gov. Garrahy got no-

where, Petitioner was told, "They are all

making big money on it. They are making

money on pollution and they are not going

to stop it. You will have to go outside

the state to get any justice."

Gail Chumura signed the same report of

our cove, saying it was not the required

setback from the water. But she left the

erroneous grade of water and usage intact,

The CWA hinge on this important criteria.

When asked about this, Ms Chumura said,

thought she was in Old Warwick Cove, and

She didn't have time to rectify her mis-

dle

take as she was going on a long vacation,

She has been rewarded for her mistake by

a position at CRMC, in Providence.

Dennis H. Esposito is a $60 an hour

lobbyist, for the sewering combines, so it

is a definite conflict-of-interest for him

to be the lawyer for the CRMC, because

sewage is our major cause of pollution in-

to the water,with over 95 sewage overflows

from sewer appurtenances in this small

state. So there is no one representing

CRMC's purpose of "preserving and protect=-

ing the coastline" except your Petitimer.

This case was started because of the

sewer pump site on our clean water by the

political profiteers for the service of

their planned condos, and they ignored

the laws and the Civil and Constitutional

nights of the residents and taxpayers of

this entire area surrounding Brush Neck

and Buttonwoods Cove and our Public Park.

Asbestos water and sewer pipes that

were pointed out by many, including CRMC,

526

and the collusion of the politicians and

their appointees, that has proven detrin-.

ental to Petitioner's health,home,garden,

clean water,clean air,equal justice under

the law, and her Constitutional and Civil

Rights, are the reasons for this suit.

Wherefore, Petitioner prays for judg-

ment against the Respondents as follows;

1. That the Respondents,and all persons

acting by,through or under the Respondents

Or by their appointments,in their revres-

ented status as officers or directors of

said State,City,and,or,Council, be restr-

ained and enjoined from siting a sewer

pumping station on,at,or near Brush Neck

and Buttonwoods Cove, specifically between

light poles #5 and #6 on Suburban Parkway

at the corner of Sea View Drive,within 55

ft. Of a salt marsh and 75 ft. from “SA"

quality water,in the base floodplain, and

in a V 10, Velocity wind,high-risk hurri-

cane zone.

2. That the Respondents,and all the

530

above said appointees, officers,or direct-

ors, be restrained and enjoined from the

burying of a hazardous material, specifi-

cally asbestos in our ground water,and the

use of this carcinogenic material be ban-

ned from all water and sewer pipe material

henceforth, and all such hazardous mater-

ial be removed,as it was put here against

our will and without our knowledge, and

depriving us of clean drinking water,

3. That the Petitioner prays for a

judicial review and all other relief which

this Honorable Court may deem fit to award.

4. That the Petitioner be awarded

attorney's fees and costs for bringing

said action.

Mae e aoe ?

CATHERINE ELIZABETH SCHWARZ °

CLEAN COVE COMMITTEE, Inc.Pres.

Pro se (as, and for,herself)

Subscribed and sworn to before me on

this day3pd of _| June » 1983.

/ :

My Commission Expires

June 30, 1986

bhe

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APP 1X

U.S.COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 82-1534

CATHERINE E, SCHWARZ,

Plaintiff, Appellant

VSe

COASTAL RESOURCES MANAGEMENT,ET AL.,

Defendants, Appellees.

APPEAL FROM THE U.S. DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Honorable Francis J. Boyle,

U.S. District Judge

Before Coffin, Chief Judge,

Campbell and Breyer, Circuit Judges.

January 26, 1983

Per Curiam. This appeal is taken from the

dismissal of Appellant's complaint seek-

ing a permanent injunction against the

installation of a sewage pumping facility.

In an earlier appeal we summarily affirmed

the denial of her request for a prelimin-

ary injunction. The dismissal of the com-

plaint was based on two grounds. First, that

the court lacked subject matter jurisdic-

tion.Second,that the action was barred by

the doctrine of res judicata since the

appellant claims subject matter jurisdic-

tion based on several laws which do not

provide for a civil action.! Indeed the

only federal provision cited which might

provide a basis is 33 USC Sec.1365.This

authorizes private citizens to bring

suits on their own behalf in three inst-

ances.First,against any person alleged

to be in violation of an effluent limit-

ation or standard,.Second,against any per-

son alleged to have violated an order

regarding such a standard issued by the

state or federal government.Third, against

the Administrator of the Environmental

Protection Agency where that person has

failed to perform a non-discretionary act.

Neither the second nor the third options

apply here.Far from being in violation of

any order, the proposed sewage pump has

2eA

been approved by both state and federal au-

thorities. The third ground is not appli-

cable because the suit does not name the

Administrator,

The first ground fails as well. An "ef—

fluent limitation" is defined in +> U.S.C.

Sec.1362 (11) to mean a restriction again-

st discharges of pollutant materials, It

is unrefuted that the pump, in normal op-

eration, will not discharge such materials,

The theory of appellant's suit is that such

discharges may take place through mechanic-

al failures or under unusual weather con-

ditions,

Such speculative allegations are insuf-

ficient to support a suit under 3% U.5.G,

Sec. 1365. The statutory structure reveals

a Clear intention to limit private citizen

suits to the most serious violations of the

Act -- those involving actual pollutant di-

scharges. While the Act may bar other, less

serious conduct, as the appellant alleges,

5A “ty

it does not provide jurisdiction for pri-

vate suits in such cases,

Appellant's brief, read broadly, may be

seen as claiming some violations of state

law. To the extent that such claims are

made we see no basis for federal jurisdic-

tion and agree with the district court that

they would be barred by the doctrine of res

judicata in light of the earlier state lit-

igation where they were or could have been

raised. Lovely v, Laliberte, 498 F.2d 1261

(Tet Cir.), cert. denied, 419 U.S. 1036

(1974).

The judgment of the district court is

affirmed.

1. For instance,she points to 18 U.S.C.

Sec. 241 and 242, criminal code sections

which provide no basis for a private civil

action; and 33 U.S.C, Sec. 1319(¢), a cri-

minal provision under the Water Pollution

Control Act which also does not provide

for a civil action,

4eA

UeSe DISTRICT COURT FOR DISTRICT OF RI.

CATHERINE E. SCHWARZ *

*

VS. ~ Cia, We,

%

COASTAL RESOURCES,ET AL. * 80-0137

JUDGMENT

This matter came to be heard on May 25

1982 before District Court Judge Boyle.

After hearing all Parties,it is hereby

ORDERED,ADJUDGED AND DECREED:

This matter shall be dismissed in accor-

dance with the findings and recommendat-

ions of the magistrate.

Entered; Francis J. Boyle, U.S.District

June 30, 1982 Judge

U.S.~COURT OF APPEALS FOR THE FIRST CIRCIUT

Before Coffin,Chief Judge,

Campbell and Breyer, Circuit Judges.

Order of Court. Rehearing denied.

Entered; March 8, 1983

De A

ERRORS OF BOTH LOWER COURTS

The lower courts have mentioned that

citizens have rights but only to "an ex-

tent" in other words, we have rights,but

not equal rights.

The Constitution of United States says

we have equal rights. And equal justice

under the laws.

The lower court erred when it mentions

that Petitioner can only complain about

pollution that is already going into water,

whereas, the Clean Water Act is striving

for total prevention of sewage appurten-

ances that bring sewage to the water in-

stead of away from t e water,by granting

more money for alternatives, and by iden-

tifying, classifying, and specifying the

usage Of each grade of water. This was

done correctly by the R.I. Health Dept.

The Respondents falsified the permit

and certification, thereby, allowing dif-

ferent usage for our cove which will de-

grade and destroy it for the usage it has

beA

now with the highest grade of salt water,

35 USC 1315.Sec. 305.(a)(3)identify sp-

ecifically those navigable waters, the

quality of which--

(A)is adequate to provide for the pro-

tection and propagation of a balanced pop-

ulation of shellfish,fish,and wildlife

and allow recreational activities in and

on the water;

33 USC 1281,Sec,2001.(2)i2) fiscal year

after June 30,1974 new pollution point

sources have to obey CWA Sec,.303. and CWA

sec.401,(2) whenever such a discharge may

effect the quality of the waters. If the

imposition of conditions cannot insure

such compliance such agency shall not is-

sue such a license or permit.

55 USC 1343, Sec. 402.(b)(1)(A) and (Cc)

Lidfii)Permits are terminated for obtain-

ing a permit by misrepresentation,or fai-

lure to disclose fully all relevant facts

35 USS 1365.Sec.505.(a) Any citizen may

commence a civil action against any gov-

Ze

ernmental instrumentality or agency whois

alleged to be in violation of (A) an eff-

luent standard or limitation under this

Act. (f) For purposes of this section,

the term "effluent standard or limitation

under this Act"' means (1) effective July

1.1973, an unlawful act under subsection

(a) of section 301 of this Act: (1311):

(2) an effluent limitation or other lim-

itation under sec.1311! or l13l2 of this

title; (4) standard of performance under

sec.1316 of this title; (4) prohibition,

effluent standard or pretreatment stand-

ards under sec,1317 of this title; (5)

certification under sec.1441 of this title

or (6) a permit or condition thereof is-

sued under sec.1!342e of this title, which

is in effect under this chapter (includ-

ing a requirement applicable by reason of

sec.1323 of this title).

(g)For the purpose of this section the

term "citizen" means a person or persons

having an interest which is or may be ad-

B.A

versely affected,

The District Courts shall have juris-

diction, without regard to the controversy

or the citizenship of the parties,to enforce

such an effluent standard or limitation,

Or such an order, or to order the Admin-

istrator to perform such act or duty,as

the case may be, and to apply any appro-

priate civil penalties under section 409

(ad) of this Act. (or 1319 of this titie)

(e)Nothing in this section shall res-

erson (or class

of persons) may have under any statute or

(oe) k Orcement of any ef-

fluent standard or limitation or to seek

any Other relief (including relief arainst

the Administrator or a State Agency).

June 50, 1948,c. 758, Title V,Sec. 505,

as added Oct. 18,1972, Pub.L. 92-500,Sec.

2, 86 Stat. 888.

teehee eee eee eee eee Pe Pee eee eee eee eT ee |

This entire Sec.505. has been photo-

copied and underlined for emphasis where

it explicitly concerns this court action,

from "THE CLEAN WATER ACT SHOWING CHANGES

9A

MADE BY THE 1977 AMENDMENTS, 95th Congress

lst Session, Committee Print, Printed for

the use of the Senate Committee on Envir-

onment and Public Works, Serial No.95-le.

It is entered in APPENDIX in U.S. Distict

Court and U.S. Appeals Court for the First

Circuit, as Item ie. It will be entered in

U.S. Supreme Court in List of Exhibits.

1. Decision for Permit by CRMC.

2. Surveys by Health Dept. of both

coves in question.

3. Map from R,I. Health Dept. showing

closures.

4. Graph oy C.E. Maguire reversing

problem area.

5. RI. Map and graph showing classi-

ication of water and pollution,

6. Contract signed by Gov. J. Joseph

Garrahy.

?7e Contract signed by Joseph McKeever,

Chairman of Warwick Sewer Authority.

8. Picture of house on exact site,one

day after hurricane,

9. Picture of our cove and Buttonwoods

City Park.

10. News clipping of Noel's plans to

hook-up condos to pump.

10.A

The

12.

28.

News clipping raising the contracted

price of sewers, further violating

CWA,Sec.201.(h)(3).

CWA Sec.505. Citizen's Suits,under-

lining power of U.S. District Court

and explanation of "limitations",

Civil Rights under Coastal Resources

Floodplain Guidelines, E.0. 11988

and E.O. 11990.

Water Resources and E.0, 11988.

Corps of Engineers and E£.0. 11988.

Justice Dept. and E.0. 11988.

Expert Testimony; Dr. Richerd Benait, PhD

ee " Robert D. Bowman

" " Richard Greenwood

Decision by Judge MacKenzie

C.A. in Disciplinary Court against

Armando Monaco II.

News clipping of Final O.K. by COR,

Credentials of Expert Witnesses, 14 og

Lists of Witnesses and Questions,

4 pages On cases mentioned herein.

CWA Sec. 510.(1)(B).

CLEAN COVE COMMITTEE's original

Complaint.

11.A

29. CLEAN COVE COMMITTEE's incorporation

30. Respondents in the news and Politic-

al Patronage ruled Unconstitutional.

31. Sewer pumping station damage 3 pg.

32. Objection to Remove From Jury-Trial

and Rebuttal to "res judicata",

HHH HHH HEHEHE HEHEHE HHH HHH HHH HEHEHE HHH HHH HEH

The lower court stated that the sewer

pump, in normal operations, will not dis-

charge into our clean water, was unrefuted.

The above statement and sewer pump and

its operation has always been refuted.

The contested sewer pump has already

defiled and degraded clean water, with

only a small percentage of hook-ups to it,

and as new as it wiil ever get, this pump

brought the fecal coliform count up to the

danger zone in June and July of 1982 andI

have D.E.M. notice of closure of most of

Narragansett Bay and it's estuaries for

June 8 to 22,1982, from approx. 95 other

filth venders, sewage pumps and sewer ap-

purtenances overflowing into the water.

The Warwick Sewer Authority had tank trucks

12.A

down at the sewer pump site and long hose

sucking out sewage filth that had leaked

Out of that sewer pump and into our clean

water. Petitioner saw these trucks down at

site with hoses dangling off the bridge

for several days pumping out as much of

the filth as they could,into the tank

trucks. Of course,they couldn't get it

all,that is why the wardens arrived with

guns and started yelling at the children

and their parents to dump the clams as the

cove was now polluted.

Petitioner has a son who works for

Hart Engineering and he took the specif-

ications up to Boston, with the blueprints

of this contested pump. The verdict of

these very competant engineers and draft-

smen is "that pump won't even hold out

water, Or hold it in" in other words, this

sewer pump is a sieve. The pumps have been

malfunctioning, ground water has been get-

ting in since it was placed on that site

so they had to keep the pumps going even

13.A

before sewage started to go into it.

Fred Hoernie, chief Engineer for the

company who planned this entire fiasco,

was the man who told my husband that,

"Brush Neck and Buttonwoods Cove were the

the overflow tanks." This was back in 1978

and we knew then exactly what would hap-

pen and it has already started,

There has been nothing speculative

about Petitioner's research into this

matter, The speculation has been coming

from the profiteers and bureaucracies, and

sad to say,the courts, so far,

The reason the certification and per-

mit clauses are in the Citizen Suit's

of the CWA is for just this reason, the

patronage system has filled thousands of

important,responsible jobs, with speculat-

Ors, They speculate that if they ignore

Petitioner long enough, she will go AWAY e

They speculate she is not competant en-

Ough to see obvious omittance of the most

important parts of the Citizen Suit sec-

14.A

tion (f) which explains what "effluent

standard and limitations'mean, That it

most definitely means fraud in a permit,

and misrepresentation in the certification

process, are important provisos of the law,

To falsify a permit is very serious.

How can clean water be protected if the

permit and certification system is allowed

to falsify documents? Why would anyone

need to falsify a document for already pol-

luted water?

The need to falsify came when the pol-

iticians wanted to bring sewage over to

clean water and found they could not, be-

cause the usage for "SA" water is;

SWIMMING, SHELLFISHING, and FINFISHING...

Can you see sewage getting into these

activities?

That is why usage has to be defined.

And that is why the politicians changed

the usage and the classification of our

cove, And the COE said it was unnavigable

because that created a loophole, where they

15.A

were not responsible for what happened.

They were here,very prominently, and

they totally ignored the Floodplain laws

and the public involvement of these laws,

Why ?

Because they did not want to let the

public in on it, in the first place, and

they knew the public did not want their

cove destroyed and degraded, and the sewer

pump on their clean water, depriving them

of a nearby place to clam and to fish and

swim, and they did not want their City

Park and beach messed up with sand piles

and haybales, and they did not want their

channel choked uv with sand, in the second

place,

And when you have so many officials in

this small area, making off they did not

know what was going on, at first I thought

they were dumb, then I realized how the

paperwork was all changed and at the cru-

cial places toget around the laws, and they

are all lawyers, so collusion was more and

160A

more evident. It is a big conspiracy to

use Our clean water cove for the dumping

ground for the sewage from the Respondents

planned condos. The condos were kept sec-

ret and land in escrow until we lost the

Preliminary Injunction in court and then

the planned condos came out in the news

papers. The planned hook-up to the sewer

pump was in the news article,too. It was

not news to me,as all this had been told

to me in March,1978. Ex-gov. Phil Noel had

his hand picked Political Appointees just

did what he told them. They did not have

to know anything about the environment or

housing,etc. Just okay the projects,make

it look like several different agencies

went over everything, got the Public's

Opinion and complied with the laws. It

would be cheaper to hire robots and stick

pens in their hands.

The people in these Agencies are not

robots and when they found out what was

really going on, Petitioner got the doc-

172A

uments and laws she needed to win this

case. By phone,and by letter,and in per-

son, Petitioner received more information

than she could absorb. But she wrote

these important facts down and every day

spent time looking up these laws and the

procedures and the constant changes that

Amendments bring. It has been a test of

Petitioner's intelligence and time, and

because the Respondents have constantly

attacked Petitioner standing and even

wrote into the record of first Public

Hearing that she was incompetent, she has

been told she should find a place in the

record to let Respondents know that their

Petitioner has a genius I...

The only other distasteful remark to

Petitioner came from a person that has

gotten over $150,000 to help clean up the

environment, and so should know better.

The remark was, "She is only doing

all this work because the pump is being

built in her backyard", This remark is

18.A

not true. It is not being built in my

backyard, It was built,literally speaking,

in Eugene Montecalvo's backyard and he

died of a heart attack from all the ag-

gravation. Furthermore, a person that got

so much government money for water pol-

lution control should know the Clean

Water Act,backward and forward,and espec-

ially CITIZEN SUITS, because paragraph

(g) For the purpose of this section the

term "citizen" means a person or persons

having an interest which is or may be

adversely affected,

So this means if Petitioner did not

live in the affected area and was not

adversely affected then Petitioner could

not bring a Citizen Suit into court,

To have clean water turned into a

cesspool right in front of your home, is

definitely an adverse condition. To have

a manhole cover put in front of your porch

and another at your back gate, is an ad-

verse condition. Since all the filth comes

19.A

Out of these manhole covers when the pump

floods out or gets blocked up.

Instead of clean clear salt air that

for the 47 years that Petitioner has lived

here, that has been such a blessing, the

Southeast wind brings a horrendous stench

that could turn your stomach. This is de-

finitely an adverse condition.

Forced to pay sewer assessments of

footage, and any and all the other devises

that the Public here are complaining of,

including $25 more in rent each month for

the poorest of people, when many could

barely pay what they had to pay in rent

before this.

When a 15¢ yeast cake once a year and

the careful disposal of grease and bleach

other than down the drain will keep a

cesspool or other septic system in good

working order and never need repairing if

made of granite stone, in the first place

And it will keep the beaches and quiet

clean coves in good working order ,too,

20.A

doing their job of a natural fish hatchery

and haven for wildlife that any clean body

of water is.

Brush Neck and Buttonwoods Cove has

snowy egrets,sandpipers, herons, kingfish-

ers, many kinds of sea gulls, and ducks,

It has thousands of schools of fish that

spawn here and clams, It has our city

Public Park and beachfront.

We had at least 12 swans. But the cam-

paign to degrade and destroy our cove had

our lovely swans as their first victims.

Two were found with their necks stran-

gled. A truck with a lone gunman shot and

killed several and then disappeared back

to wherever he came from, None have been

here for the past 2 years.

The Asbestos water pipes that have

forced us to buy bottled water, filters

and pay 2 water bills.

The Asbestos sewer pipes that bring

fibers of this carcinogenic out to our

Clam beds and our sea food chain,

21.A

These are all adverse conditions that

are affecting, not only your Petitioner,

but the entire area around our cove and

the residents that make their homes here

and the visitors to our Public Park,

eC CCC TCT T eC CC CC CTC TCC CCC CeCe ee ee ere ee

There has been a continual dialogue

with the Administrator of EPA Boston and

also a notification of the court action

mailed to William Adams. It was returned

with a stamp saying address unknown or

a similar stamp. Petitioner then hand

delivered the letter to Mr. Adams, as a

meeting had been scheduled for the same

weex,. This was in January of 1979 and we

did get a Public Hearing but never a

Judicial Review of the documents,so the

errors could have been rectified at an

early date, but were not.

Also, there have been 3 Administrators

at EPA Boston since we have been on this

case. William Adams, who possibly tried

to help us, but was discouraged from help-

22.A

ing us by our lawyer.

Leslie Carothers, Acting Administrator

was sent the falsified Decision for Permit

and this was through the interceding of

Congresswoman Claudine Schneider's office.

Leslie Carothers' answer ignored the

important changes of water quality and

Obvious new proliferation (which Respond-

ents had always denied and later ignored

when it came out in the news papers) only

the landscaping took 3/4 's of the answer.

Lester Sutton has never answered mail.

He was Chief of Water Pollution Control in

1978, at Boston EPA, so he was the one who

could nip this atrocity in the bud. But he

did nothing. We never saw him or received

any answers to our letters. We couldn't

get him on the phone. Many of our Members

tried to get in touch with him, and never

reached him. He was totally useless at his

job of controlling water pollution,so they

made him the Administrator of EPA, Boston.

Thankfully,he has been fired now by the

23.A

new Administrator of EPA, William Ruckels-

haus.It was the best news Petitioner has

heard all year. And that Inspector General

Matthew Nowick is out, was the next best.

His idea of an investigation was to call

up Lester Sutton and get a reiteration of

the lies, then call me back and tell me

he has talked to his "experts" and they

knew what they were doing. Petitioner told

him, she knew what Lester Sutton and Guy

St.Andre were doing,too, and it had nothing

to do with protecting the environment, I

said, "Mr. Nowick, if you were investigat-

ing a bank robbery, you would ask the

thief if he did it. When the thief said

he did not, you would say you had invest-

igated the robbery,"

Petitioner had notified «all concerned

about the need for a judicial review and

within the time alloted, 50 days after the

Final Decision by CRMC. We will try and

get in touch with the new Administrator,

Since it may take awhile, this case will

CueA

have to be entered before that happens. We

have already sent him a 4 page letter.

Se

As to naming an Administrator to this

suit because of the temporary and capric-

ious nature of these positions of Respon-

dents, the advice was given to Petitioner

to write out the Defendants (Respondents)

in a legal way that would catch them all

in the same net, thus;

"The Defendants, and all persons acting

by, through or under the Defendants or by

their appointments, in their represented

status as officers or directors of said

Council, State, and, or, City, be restrai-

ned and enjoined----"

This would include the COE because the

appointment was made by the Warwick Sewer

Authority,as Exhibit Item 23. shows.

That both these agencies, EPA and COE

have had a big hand in this project along

with the politicians, is evident, but the

total lack of their responsibility to the

Floodplain laws and Clean Water Act, and

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the residents of this base Floodplain, who

are being victimized by their actions, is

also, very evident.

CFR. Title 44 Ch.1 FEMA. Sec.60.6 (3)

Variances shall not be issued if they

will result in increased flood heights,

additional threats to public safety,ex-

traordinary public expense,create nuisances

cause fraud on or victimization of the

public,or conflict with local laws or or-

dinances. (See Sec.60.3,60.4,and 60.5)

S Pf

(1)Permit only that development of flood-

prone areas which (i)is appropriate in

light of the probability of flood damage

and the need to reduce flood losses (ii)

an acceptable social and economic use of

the land in relation to the hazards invol-

ved,and (iii)does not increase the danger

to human life,

(2)Prohibit nonessential or improper

installation of public utilities and public

facilities in flood-prone areas.(See Sec.

26.A

60.11, 60.12, 60.13 and Part 9--Floodplain

Management and Protection of Wetlands),

on anagement Act of 1] e

16 Sec. 1456 Ch.33 (f) Notwithstanding any

provisions of this chapter,nothing in this

chapter shall in any way affect any requ-

irement (1)established by the Federal Wa-

ter Pollution Control Act,as amended,or

the Clean Air Act,as amended,or (2) est-

ablished by the Federal Government or by

any state or local government pursuant to

such Acts. Such requirements shall be in-

corporated in any program developed pur-

suant to this chapter and shall be the

water pollution control and air pollution

control requirements applicable to such

program.

There are 16 pgs. on regulating Asbes-

tos at the source of manufacturing because

it is so detrimental to our health. Yet,

Respondents are bringing it into the state

bt the ton and burying it in our ground

water,using it for water and sewer pipes.

Purpose. The citizens' suit provision

of this section was designed to supplement

27 oA

and expedite administrative action to ab-

ate violations of this chapter; recourse

to the courts is appropriate only when the

administrative action taken is less than

adequate. Com.of Mass. ve U.S, Veterans

Administration, C.A. Mass.1976, 541 F.2d

119.

Private suits in the United States di-

strict courts based upon alleged violati-

ons of "effluent limitations" of this ch-

apter are provided for by this section as

anadditional means of enforcement, Amer-

can Frozen Food Institute v. Train,1976,

Ja) Be 2a W7, 176 U.S, Apne. 65.

The inclusion in this chapter of this

section providing for citizen suits indi-

cates that Congress specifically intended

that the interests of private citizens be

protected by this chapter. Loveladies Pro-

perty Owners Ass'n, Inc. v. Raab, D.C.N.J,

1975, 450 F. Supp. 276, affirmed Sk? F. 24

1162.

It was congressional intent to supple-

ment administrative enforcement of this

chapter with enforcement by citizen suits,

and also to put strong reliance on admin-

istrative enforcement, generally allowing

citizen enforcement only after Administr-

ator has had opportunity to bring his po-

28.A

wers Of enforcement to bear on the pol-

luter. Save Our Sound Fisheries Ass'n v,

Callaway, D.C.R.1.1977,429 F. Supp.1136

Special citizen suits provision of

this section was intended to encourage

citizen participation in the enforcement

of chapter. State of Minn.1975, 401 F,

4S Navigable Waters. Legal definition of

"navigable waters" or "waters of the Uni-

ted States", within scope of this chapter

includes any waterway within United States

and also normally dry arroyos through wh-

ich water may flow, where such waters will

ultimately end up in public waters such

as a river or a stream, tributary to a

river or stream, lake, reservoir, bay,

gulf, sea or ocean either within or adja-

cent to the United States. U.S. v. Phelps

Dodge Corp., D.C.Ariz.1975, 391 F. Supp.

1181,

Subsec. (c)(1) of this section applies

only to citizen suits against a violator

and is not applicable to citizen suit's

against the Administrator for failure to

perform a nondiscretionary act or duty;

14. STANDING TO SUE. Even if the Environn-

ental Protection Agency would decline to

prosecute in case of an unavoidable excu-

29.A

rsion with respect to party holding effl-

uent permit,any citizen would be free to

commence an enforcement action which wou-

ld not be blocked even though the Agency

believed suit should not go forward, Mar-

athon Oil Co. v. Environmental Protection

Agency, C.A.9, 1977, 564 Feed 1253.

Allegations of associations of tax=-

payers and property owners in Long Beach

Island area that their members were dire-

ctly affected" by ecological system of

Barnegat Bay,that they enjoyed the areas

anesthetic benefits that they used the area

for recreational activities, and that the

value of the properties they owned in the

area would be adversely affected by the

deterioration in the environmental qual-

ity of the bay sufficient to confer stan-

ding under this section. Loveladies Pro-

perty Owners Ass'n,Ince ve. Raab,D.C.NedJ.

1975, 430 Fe Supp. 276, affirmed 547 F.2d

1162,

Community groups whose members were

citizens of D.C. and Montgomery County,

Md.,two jurisdictions which are contigu-

ous to flow of Potomac,had standing to

maintain action for declaratory and injun-

ctive relief ordering the defendats to re-

frain from authorizing further sewer hook-

30.A

up permits which would result in sewage

discharges affecting the water quality of

the Potomac, as against contention that

plaintiffs had no standing because they

failed to allege that they used it in any

way, or purpose that would be adversely

affected by defendants actions, Montgomery

Environmental Coalition v. Fri. D.C.D.C.

1973, 366 F.Supp.261.

Individuals and citizens associations

suing for injunctive relief restraining de

fendants from granting permits for sewer

hookups into sewer system and requiring de-

fendants to revoke certain existing hookup

permits would be permitted to amend compl-

aint to add count asserting that the alle-

ged discharges into the stream system con-

stituted an imminent and substantial endan-

germent to the health of persons under

section 1364 of this title. Committee for

Consideration of Jones Falls Sewage System

v. Train, D.C.Md.1974, 375 F.eSuppe 1148,

affirmed 539 F.2d 1006.

Petitioner has submitted other actions

relevant to this case in 60-1479, US App.

Ist Cct. and 80-1122 US Supreme Ct.

CERTIFICATION Copies sent to Thomas Mull-

aney,75 Weybosset St.,Dennis H. Esposito,

72 S. Main St.,Daniel Schatz,72 Pine St.

all of Prov. R.I. 02903.

316A