By Gina Tabonares
Variety News Staff

THE government of Guam is asking the federal court to modify the consent decree that requires them to build a new landfill and close the Ordot Dump, and is requesting an extension of the stipulated deadlines at least up to September 2008.
GovGuam said the current consent decree timelines are unworkable.
In a motion submitted to the District Court of Guam, GovGuam outlined the reasons for the Guam Department of Public Works and Highway’s failure to comply with the agreement.
Assistant Attorney General Helen M. Kennedy, GovGuam counsel, said there are significant changes in circumstances beyond their control and were not anticipated when GovGuam signed the consent decree on Oct. 21, 2003.
One of the reasons they cited for missing the deadlines was the United States’ decision to withhold some federal grant money for over eight months.
According to GovGuam, the grant was previously approved for the Layon project due to a new policy by the U.S. Department of the Interior of applying the National Environmental Policy Act procedural requirements to its construction grant funds.
Kenney, quoting a declaration made by DPW project manager for the consent decree Cynthia Jackson, said GovGuam sought the assistance of both the U.S. Environmental Protection Agency and management at the Interior but neither agency made the release of the Layon grant funds a priority.
Jackson said GovGuam also asked the USEPA for assistance in contacting and obtaining agreement from the National Aeronautics and Space Administration for DPW to improve the portion of the dirt access road to Layon, which traverses the NASA property but none has been given.
The local government also told the court that owners of the land denied access to the Layon landfill site. In August 2006, GovGuam offered to purchase the land from the recorded owners who are involved in a partition action over the property but one of the owners declined the offer.
One of the owners showed interest on Jan. 25, 2007, but only granted the government a license to use the property for groundwater investigation, design work, road improvement and applications for the zoning change.
Another significant change that GovGuam cited for non-compliance is the United States’ decision in 2005 to increase the military presence on Guam.
As a result, the Department of Defense will need to use the Layon landfill for solid waste disposal because the Air Force’s landfill is expected to be filled to capacity in 2007 and the landfill planning during the environmental impact statement process did not include the unprecedented military build up.
“Consequently, this change requires additional planning and potential federal funding for the Layon landfill construction,” DPW director Larry Perez said in his court declaration.
GovGuam also mentioned the severe limitation of general funds for the consent decree projects, citing the recent settlement of the earned income tax credit case where the local government must pay $90 million.
It also provided the federal court with a copy of the Superior Court judgment ordering the government to pay some $123 million to certain retirees their cost of living allowances.
DPW also admitted that it made mistakes when it assigned an inexperienced chief engineer to make designs that affected the consent decree significantly.
Perez said he tasked chief engineer Marc Gagarin to do cost estimates for the project. When Perez asked Gagarin why costs would reach $30 million, Gagarin said DPW did not have the money to include value engineering analysis which would have identified the different design options.
Perez said Gagarin eliminated the design of a leachate treatment system and the development of the wetlands mitigation plan.
Perez said he learned after Gagarin retired in 2006 that the former DPW chief engineer had reduced the number of groundwater wells and did not contract for groundwater monitoring, to be able to comply with Guam EPA regulations.
In addition, Perez noted that DPW has had extreme difficulty in attracting and keeping qualified engineers to work on the consent decree projects. He said DPW has not been able to replace an engineer who worked on the projects but resigned in August 2005, while the remaining engineer has limited experience.
The government also told the court that it has encountered political opposition to locating the landfill at Layon.
Kennedy said since Layon was identified in March 2004 as the site for the landfill, members of the Guam Legislature have introduced at least four bills to change the landfill location and, as a consequence, the government and its contractors have conducted public outreach far greater than required—causing further delays in implementing the consent decree projects.
The GovGuam counsel further argued that these significant changes warrant a revision of the consent decree.
“Unforeseen obstacles that make compliance with a consent decree more onerous, unworkable or detrimental to the public interest warrant modifications to the consent decree,” Kennedy told the federal court.
The opening of the new landfill is mandated by the Ordot Consent Decree of Feb. 11, 2004 signed by GovGuam and the United States thru the USEPA.
The decree mandates that Guam implement an Ordot Dump closure plan, close the Ordot Dump and open a new municipal solid waste landfill by Sept. 2007.
The consent decree did not identify a specific location for the new landfill but requires GovGuam to prepare a detailed analysis with public input of at least three potential sites before it identifies its preferred site.
The Layon site was selected as the preferred site for the construction of the Layon Municipal Sanitary Landfill at Inarajan for an estimated cost of almost $60 million.
According to the company that made a value engineering study, the project is designed to be a fully compliant RCRA Subtitle D Municipal Solid Waste Landfill Facility on the island of Guam.
Also known as the Dandan Site in Inarajan, the Layon Site is approximately 176 acres in size and is located in the higher badland areas on the west side of the Dandan parcel, southwest of the former NASA tracking station.
The new landfill project includes, among other things, the construction of disposal cells, the installation of liner system, the construction of leachate collection and a management system, a subdrain system, a landfill gas management system, perimeter roads and drainage facilities and new access roads and reconstruction of the existing road complete with proper signage and striping.