By Gina Tabonares
Variety News Staff

THE local government effort to persuade the federal court to modify the deadlines for the closure of the Ordot Dump and the creation of a new landfill suffered another setback after the U.S. government disagreed with the presence of a GovGuam witness in Wednesday’s hearing.
The hearing on the U.S. government motion to enforce the consent decree involving the dump closure and opening of a new landfill, and GovGuam’s motion to modify the stipulated deadlines of the landfill projects, were both scheduled for 9:30 a.m. on Wednesday.
To support their claims, GovGuam subpoenaed Joseph Morcilla, a former employee of the Guam Department of Public Works, to testify.
However, the U.S. Attorney’s Office filed a motion to quash the subpoena for Morcilla, arguing that the subpoena was not filed in a timely manner and does not conform to the local rules regarding the form of testimony.
According to the U.S. government motion signed by Assistant U.S. Attorney Mikel Schwab, the untimely subpoena would prejudice the federal government’s interests and give them no opportunity to review Morcilla’s testimony before the hearing, and they will have no opportunity to question the witness in a deposition before the hearing.
Schwab said if GovGuam believes that Morcilla has some information that could be relevant, the local government should have presented the information in an affidavit filed at the time that its briefs were due.
Schwab argued that local court rules eliminate the element of surprise and allow each party and the court to determine the evidence supporting and opposing a motion before the scheduled hearing.
Schwab said if the court does not quash the subpoena for Morcilla, it should require GovGuam to file a proffer of their witness’ testimony in affidavit form not later than March 5, three days before the scheduled hearing.
The U.S. also asked the court to allow them to either rebut the evidence through an opposing affidavit or apprise the court of other steps, such as taking a deposition.
The federal government filed a complaint against GovGuam on Aug. 7, 2002 alleging that it violated the Clean Water Act by discharging pollutants from the Ordot Dump into waters of the United States without a National Pollutant Discharge Elimination System permit, and for violating the terms of an order from the U.S. Environmental Protection Agency requiring the territory to eliminate the unlawful discharges.
The United States sought both injunctive relief and civil penalties to address the violations of the Act.
In December 2003, the U.S. and GovGuam reached an agreement on the terms of a consent decree. As both parties agreed, the consent decree addressed not only the closure of the Ordot Dump but also the opening of a new landfill.
The U.S. District Court entered the consent decree on Feb. 11, 2004.
Three years later, the U.S. asked the court to revisit the consent decree and complained that GovGuam had failed to comply with critical deadlines established by the consent decree.
Federal authorities say GovGuam not only failed to award a contract for the closure of the Ordot Dump but also failed to award a contract to construct a new landfill.
Under the consent decree, GovGuam is expected to begin operating the new landfill by Sept. 22, 2007, and close the Ordot Dump by Oct. 22, 2007.