Firm takes over dump; Court says all remedies exhausted
Tuesday March 18, 2008
By Gina Tabonares
Variety News Staff
FED up with GovGuam's lack of leadership, planning, and vision, District Court of Guam Chief Judge Frances Tydingco-Gatewood yesterday ordered the appointment of a Virginia-based receiver that will handle the island's solid waste management.
The appointment of Gershman, Brickner & Bratton Inc. (GBB), a Fairfax, Virginia-based company, as receiver was not decided hastily, Chief Judge Tydingco-Gatewood said, emphasizing that "it was not made lightly or with relish."
In a 23-page order, the court said there is no more remedy left to resolve the island's garbage crisis, which the court described as "highly dysfunctional, largely mismanaged, overly bureaucratic and politically charged."
The court said the inherited problem is "beyond correction by conventional methods."
The selection of GBB, with Special Principal Associate David L. Manning as the signatory, displaces GovGuam's full power and authority in enforcing the terms of the Consent Decree.
The company now assumes all of the responsibilities, functions, duties, powers, and authority of the Solid Waste Management Division of the Department of Public Works "and any and all departments, or other divisions of the DPW in so far as they affect GovGuam compliance with the Consent Decree."
The receiver now has the authority to complete management and control of all Consent Decree projects including but not limited to the supervision of all GovGuam employees associated with the Consent Decree projects, performance of existing contracts, and entering into future contracts deemed necessary.
GBB is now also in charge of the facilitation of financing and borrowing of funds to carry the Consent Decree projects. It can modify the revised financial plan or methods of debt financing it deems appropriate.
The receiver will likewise take care of the application of the Consolidated Commission on Utilities for rate increases for residential waste collection services and tipping fees and will be in charge with hiring all consultants, professionals, contractors and engineering firms or counsel, which the receiver deems necessary for the performance of duties necessary in meeting the mandates of the Consent Decree.
* Fees *
The receiver, which is required to submit quarterly reports to the court regarding the progress made toward the compliance of the Consent Decree, will initially use the $2.8 million deposited by GovGuam to pay the penalties for missing Consent Decree deadlines.
Under the initial compensation rate GBB submitted, GovGuam taxpayers have started paying the company's president and special principal associate $250 per hour.
A fee of $225 per hour will also be paid for the executive vice president, $210 per hour for the senior vice president, $185 per hour for the vice president, and $165 per hour for the principal associate or principal engineer.
The firm's asking fee for senior project manager or senior project engineer or senior associate engineer is $160 per hour.
A fee of $140 per hour will be paid for project manager, $125 per hour for project engineer, $105 per hour for consultant II or contract administrator, $85 per hour for engineer I, $65 per hour for support manager, $60 per hour for administrative secretary, editor or staff accountant, and $45 per hour for clerical or support staff.
On top of the hourly fee for the receiver's staff, GovGuam will also pay for the staff travel expenses and the board and room arrangements of visiting GBB workers from Virginia.
* Exhausted remedies *
The court stressed that it considered drastic remedies to ensure that islandwide health and environmental hazards brought about by the Ordot Dump leachate does not continue.
The Chief Judge said that despite the passage of 22 years, the Ordot dump is still in operation and remedial measures that include the imposition of monetary damages, the appointment of a special master or court monitor, the imposition of a moratorium, and the immediate closure of the Ordot Dump did not resolve the continuing harm to the environment and the citizens of Guam.
According to the court, the history of the Consent Decree case demonstrates that the GovGuam is "paralyzed by an institutional and systematic quagmire that has prevented it from effectively complying with the Consent Decree."
The Chief Judge stated that GovGuam should not be surprised by the receivership order, saying the record reveals that the local government has been on notice of its violation of the Clean Water Act for 22 years.
She also mentioned that GovGuam lacked commitment towards financing the Consent Decree projects.
Despite being earlier advised by the Public Utilities Commission to improve its collection rate, DPW recently reported that it only improved its collection rate from 30 to 50 percent.
The Chief Judge said the lack of consistent revenue stream from collections is exacerbated by the Legislature's failure to provide funding for any of the Consent Decree projects.
"Without commitment to fund the necessary projects, there is little chance that the closing of the Ordot Dump and opening of the landfill at Dandan will occur at all," the court stated.
The court also pointed out the lack of cooperation between the executive and legislative branches to respond to the solid waste crisis.
The Chief Judge said the Legislature not only failed to provide any funding for Consent Decree projects but actively prohibited the expenditure of monies toward the development of the landfill in Dandan.
Until this time, the court noted that GovGuam has no tangible progress with DPW Director Larry Perez "undecided as to how best to proceed."