Summary of Appointment of Receiver Court Order
View full court document.
The history of the Government of Guam's violation of the Clean Water Act goes back to 1986, when the United States Environmental Protection Agency (EPA) issued an administrative order directing the island's Department of Public Works (DPW) to cease the discharge of leachate from the Ordot Dump.
Twenty-two years later, the Ordot Dump, the island's only municipal site for solid waste disposal, continued to leach contaminants, posing an environmental and health hazard. A Consent Decree was approved by the U.S. District Court of Guam in February 2004, yet compliance with its mandates was minimal.
Though the governor was committed to complying with the Consent Decree, the governor's efforts and those of the DPW employees were not enough to rectify the island's solid waste crisis. On March 17, 2008, Gershman, Brickner & Bratton, Inc. (GBB), solid waste management consultants, was appointed as Receiver by the District Court of Guam to achieve the government's compliance with the Clean Water Act as set forth in the Consent Decree.
What is a Receiver?
Traditionally, a Receiver was a court-appointed, neutral third party responsible for holding and protecting specific properties. However, the concept of a Receiver has evolved from that of a custodian of property to an agent of reform. The Receiver takes the place of the defendant, making large and small decisions — including financial decisions — to secure the defendant’s compliance with judicial decrees.
In 2005, a Receiver was appointed to oversee and administer medical services in California’s state prison system in Plata v. Schwarzenegger. These modern, remedial Receiverships have also arisen in environmental cases. The first of these cases occurred in 1979, when a Receiver was appointed to ensure the City of Detroit’s compliance with the Federal Water Pollution Control Act.
Since United States v. City of Detroit, other courts have ordered Receiverships when environmental laws were implicated and health and safety concerns were raised.
Why was a Receiver necessary in this case?
- History of Noncompliance
- For more than 22 years, the Government of Guam had been on notice for its violation of the Clean Water Act.
- Four years after entering the Consent Decree, the island's compliance with its mandates had been minimal.
- The government could not articulate the means of funding either the closure of the Ordot Dump or the construction of a new landfill at Layon.
- In its financial plan, required by the Consent Decree, the Government of Guam proposed the funding of various Consent Decree projects through revenue bonds, which would be repaid through the collection of tipping fees and residential customer rates.
- The DPW has been unable to increase its residential collection rate to support the revenue bonds. The Public Auditor estimated that $4 million in government revenues were lost due to thousands of customers who were not billed or did not receive services.
- Guam's Legislature has repeatedly failed to provide funding for any Consent Decree projects.
- The Guam legislature prohibited the expenditure of monies toward development of the new landfill at Layon.
- When the governor used his transfer authority to pay court-ordered penalties, the Legislature chastised the governor instead of collaborating with him to remedy the government's financial problems.
- On January 24, 2008, Chief Judge Tydingco-Gatewood, citing the Supremacy Clause of the United States Constitution, struck down the Government of Guam’s prohibition against expenditures for the landfill site at Layon.
- In August 2007, the Public Auditor recommended that the Government of Guam enter into service contract agreements with commercial haulers. Though more than six months have passed, the government has not finished drafting these agreements.
- Though a road design plan for the new landfill site was completed more than a year and a half ago, no requests for proposals or invitations to bid have been put out and no work has been done.
- The condemnation of the property for the new landfill site has not been completed, and a new appraisal of the property will be necessary due to the time lapse.
What are GBB’s Responsibilities?
GBB has full power to enforce the terms of the Consent Decree and assumes all of the responsibilities and functions of the Solid Waste Management Division of the Department of Public Works and any and all departments or other divisions of the Department of Public Works insofar as they affect the Government of Guam’s compliance with the Consent Decree. These responsibilities include (but are not limited to):
- Supervising all Government of Guam's employees associated with Consent Decree projects;
- Assuming control of existing contracts;
- Awarding of all future contracts;
- Hiring of all consultants, contractors or counsel necessary for administration, financial, legal, accounting, engineering, construction or operational services;
- Facilitation of financing and borrowing of funds necessary to carry out duties related to the Consent Decree;
- Applying to the Consolidated Commission on Utilities for rate increases for residential waste collection services and tipping fees;
- Consulting with the EPA regarding Guam’s compliance with the Consent Decree and to secure technical advice or assistance;
- Submitting quarterly reports to the District Court of Guam regarding the island’s progress toward compliance with the Consent Decree.
- As Receiver, GBB — and any consultants employed by GBB — will have full access to the staff, documents, books, records, databases and facilities of any Government of Guam departments or divisions of the DPW.
How long will the Receiver be in place?
The appointment of GBB as Receiver shall be in place as long as necessary to achieve compliance with the decree unless otherwise directed by the court.
For more questions and answers, please visit the FAQs page.