Monday, March 17, 2008

Federal Receiver Takes Over Solid Waste Management

Federal receiver takes over Guam's solid waste management
by Mindy Aguon
Monday, March 17, 2008

After being on notice for the last 22 years of violating the Clean Water Act and failing to clean up its act, the Government of Guam has run out of luck and time. District Court Chief Judge Frances Tydingco-Gatewood Monday morning issued a monumental decision appointing a federal receiver to oversee solid waste management operations.

The judge found no other means to ensure compliance with a 4-year-old consent decree and the closure of the Ordot Dump that at this point has no realistic end in sight. Guam's governor says grave financial implications not only on the government but island residents. Quite simply, "Highly dysfunctional, largely mismanaged, overly bureaucratic, and politically charged" is how the federal court described the island's solid waste system.

With the government's belief that it will take four years before a new landfill is opened and the dump is closed, the chief judge found no other alternative than to appoint a receiver. After interviewing seven of the nine potential receiver candidates, Tydingco-Gatewood selected one of the Government of Guam's picks - Gershman, Brickner and Bratton, Inc. of Fairfax, Virginia - through its principal associate, David Manning, to oversee the government's solid waste management operations. The judge says the appointment of GBB as a receiver is a positive step in moving GovGuam forward as she found that imposing monetary damages, closing the dump, or appointing a special master were inadequate remedies.

Governor Felix Camacho says he and Department director Larry Perez have both done their best to find ways to make the Ordot closure happen. "Many of them, both Republicans and Democrats, have failed the people of Guam," said Camacho. "I tell you, it's going to cost the people of Guam. If we had done this expeditiously and on a timely basis with their support, it would not lead to receivership but because of their repeated impediments and their refusal to support this process in compliance with the court we are where we are now.

"The Legislature had absolutely no interest in allowing this government to succeed by closing Ordot and opening a new landfill at Layon or Dandan."

The legislative impediments include Resolution 103, passed by Democrats Rory Respicio, Judi Guthertz, David Shimizu, Tina Rose Muna-Barnes, Adolpho Palacios and Judi Won Pat; and Republicans Jesse Anderson Lujan and Frank Blas, Jr. The measure presented to the federal court the Legislature's intention and support for a landfill in Guatali. Governor Camacho continued, "There's so much more that this receivership on this government is going to lead to, and only time remains to see what the irreparable harm that is being brought upon our people and our territory what that will be."

The governor met with the attorney general this afternoon, but says there's nothing's to appeal but now getting the job done.

With the government on notice for the last 22 years of its violations of the Clean Water Act and the history of non-compliance, DPW's director says the court's imposition of receivership didn't come as a surprise, rather the timing of her decision. Perez noted, "In terms of the inevitableness of it, the thing that came to mind personally, how much more impediment would the legislature keep giving me?"

Speaker Won Pat meanwhile reacted to today's announcement and the governor's response, telling KUAM News, ""When I came in on Thursday and checked last week to see if there have been any request to the legislature regarding the consent decree since 2005, there hasn't been any since 2008. And that was the time that it was included.

Government officials have been unable to reach GBB representatives hoping they can get more information in the next few days.

According to the chief's judge's order, the federal receiver has been assigned several duties, responsibilities and authority out its mandate. The receiver shall have:

- Full power and authority to enforce the terms of the consent decree
- Supervision of all GovGuam employees associated with the consent decree projects
- Performance of existing contracts
- Entering into future contracts receiver should follow Guam's regulations and statutes unless compliance would unreasonably delay the progress
- Hire consultants, Professional, contractors, etc.
- Facilitation of financing and borrowing of funds necessary to carry out the duties relating to the consent decree
- Can apply to the Consolidated Commission on Utilities for rate increases for residential waste collection services or tipping fees
- On a temporary or permanent basis
- Full access of all government records
- Consult with the USEPA in complying and secure technical advice

GBB officially begins its receivership services today. According to the court's order the appointment will continue until there is compliance with the consent decree or the receiver chooses to back out. The solid waste management consultants must submit quarterly reports and is responsible solely to the District Court. The judge also made it clear that no lawsuit can be filed against the receiver.

The company is aware that there is currently $2.8 million available to be used to cover the expenses of the receivership that can be replenished as needed.

In the meantime, according to the company's filing with the court, Manning will charge $250 an hour while GBB's vice-president, Chace Anderson, draws an hourly fee of $185. Billings will be provided to the court on the seventh day of each month for the court's review, with payment from the government by the 25th. Payment shall be limited to 90% of fees and 100% of all reasonable expenses, while 10% of fees will be held in trust to be paid upon completion of the services.

Read the District Court's decision by clicking here

No comments: