By Gina Tabonares
Variety News Staff

UNSATISFIED with the list of reasons given by the local government for not complying with the consent decree, the U.S. District Court of Guam yesterday expressed its leaning towards holding GovGuam in contempt while expressing its concern over the failure to close the Ordot Dump which continues to pose grave health hazards to the inhabitants of surrounding villages.
During a three-hour motion hearing yesterday, U.S. Magistrate Judge Joaquin Manibusan questioned GovGuam’s priorities inquiring why judgment for the cost of living allowance payments and the earned income tax credits are at the top of the local government’s list while it failed to focus on the consent decree which was imposed three years ago.
GovGuam attorney Helen Kennedy took a beating when the judge scrutinized the local government’s reasoning on the need to modify the consent decree and give the Department of Public Works until June 2011 to open a new landfill and close the Ordot Dump by July 2010.
“Can we afford to expose the community to hazards for another three to four years? It seems that you failed to give priority to the health of the community and the local government gave more concern to paying COLAs and EITCs. Is it reasonable to continue this health threat? I don’t think it is fair to this community. Where are your priorities?” Judge Manibusan asked GovGuam lawyers.
To stress his point, Judge Manibusan asked Kennedy where she lived. When Kennedy replied that she lived in Piti, the judge suggested GovGuam authorities, specifically the local officials concerned, should exchange their residences with Ordot residents “to realize the hazards of living in the area.”
“Is it right to say that we should focus on funding other obligations like COLA and EITC payments over health hazards? We forgot this problem. These residents are also people of Guam,” Judge Manibusan said.
While the court recognized the fact that it was no longer realistic to observe the deadlines imposed in the consent decree, the judge asked the GovGuam lawyer where it would lead them if the federal government decided to withdraw its motion to enforce the consent decree deadlines.
Kennedy stressed the need to give GovGuam at least a year to complete the hydrological project for the new landfill in Layon in order for mediation among local and federal government representatives to address several concerns which she said were “unforeseen circumstances” when the consent decree was drafted three years ago.
Kennedy mentioned again the time needed for procurement, the difficulties in hiring competent engineers, the changes of law with regard to financing, the military buildup, political opposition, and events that were beyond the control of GovGuam.
She asked the court to order the federal government to improve the dirt road on the NASA property so DPW could have better access and avoid further delay in the Layon landfill construction.
Kennedy also urged the court to issue an order to require an appropriation from Congress because the federal government should share the new landfill construction expenses in line with the anticipated military buildup that will contribute to the use of the new landfill.
She told Judge Manibusan that Gov. Felix P. Camacho is trying to get the nod of the U.S. Environmental Protection Agency in Washington, D.C. to help the local government with the funding of the landfill.
Kennedy also asked the court to give directives to the U.S. agencies concerned including the Environmental Protection Agency to respond to them in a reasonable time.
Judge Manibusan said the court cannot order a landowner to provide property access because doing so is unconstitutional.
Recognizing that the stumbling block is funding, Judge Manibusan brought up the idea of transferring the control of Solid Waste Management from DPW to the Public Utilities Commission through a public corporation which was highly endorsed by the U.S. government.
According to U.S. lawyers, PUC or a public corporation should handle the collection of garbage tipping fees to ensure proper funding for the new landfill project and the closure of the Ordot Dump.
GovGuam, however, argued that there is no need for the reconstitution of SWM, saying that DPW has already decided to contract out the management of the garbage collection fees.
Kennedy said a public corporation will not fit legally with the consent decree as the local government will not have control over an agency.
USEPA representative Robert Mullaney, however, opposed Kennedy’s argument, saying that the consent decree should apply to successor or line agencies of the local government and there wouldn’t be a problem if SWM is reconstituted.
“We don’t see the relevance of Atty. Kennedy’s argument. We don’t see how PUC’s involvement would further delay compliance. It is a complete mystery. It is only PUC which admitted all these travesties and recognized how disarrayed GovGuam is and continues not to focus on the consent decree deadlines,” Mullaney said.
He also reacted when Kennedy said there is a pending threat of another delay because Guam senators are still debating whether Layon is the appropriate location for the new landfill.
“This is an indication of a completely dysfunctional operation. We couldn’t get the legislators to focus on how to help in funding the consent decree (compliance) or respond to PUC for reconstitution but they have time to identify the (location of a) new landfill and dance around. It’s clear they never considered these deadlines seriously. Time is up for extension. We need to see the money for the projects. Where is the beef?” Mullaney said.
As for GovGuam’s demand to require the federal government to share the cost of the new landfill, Mullaney asked, “Why should the whole nation pay for your violations? We did not violate the federal law when you violated the Clean Water Act.”
Mullaney said the military buildup is irrelevant and should not be used to further postpone compliance. He described GovGuam’s reasons as self-inflicted barriers.
He added that they are no longer open for talks, saying that “we are not up for dialogue because our patience is over.”
Assistant U.S. Attorney Mikel Schwab repeated the need to put SWM under the supervision of a public corporation, saying that PUC has contracted a consultant that recommended removing the said agency from the turf of DPW is the best possible solution to get the compliance done.
As of the 2006 plan, DPW stated that GovGuam needs at least $59 million to close the Ordot Dump and develop the new Layon landfill. The amount does not include the land acquisition cost.
The contracted private engineers said it needs at least two dry seasons to construct the Layon landfill, and the new landfill will only start operations in June 2011.
To get additional funding for the projects, DPW proposed increasing the collection tipping fees but PUC deferred the plan, recognizing the need to improve the collection services first before imposing additional or new charges.