Petitioners Brief — Territory of Guam, Petitioner v. United States
Supreme Court briefFeb 22, 2021
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No. 20-382
In the
Supreme Court of the United States
GOVERNMENT OF GUAM,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
JOINT APPENDIX
Counsel for Respondent
Counsel for Petitioner
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
DEPARTMENT OF JUSTICE
Washington, DC 20530
(202) 514-2217
SupremeCtBriefs
@usdoj.gov
GREGORY G. GARRE
Counsel of Record
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
PETITION FOR CERTIORARI FILED SEPTEMBER 16, 2020
CERTIORARI GRANTED JANUARY 8, 2021
TABLE OF CONTENTS
Page
United States Court of Appeals for the
District of Columbia Circuit Relevant
Docket Entries: Government of Guam v.
United States, No. 19-5131 ............................. JA-1
United States District Court for the District
of Columbia Relevant Docket Entries:
Government of Guam v. United States, No.
1:17-cv-0248 7-KBJ ......................................... JA-6
Memorandum in Support of Motion to Enter
Consent Decree with Exhibits 1-3,
United States v. Government of Guam,
No. 02-cv-00022 (D. Guam Feb. 2, 2004)
(C.A.J.A. 182-213) ......................................... JA-22
Amended Complaint, Government of Guam v.
United States, No. 3:17-CV-00371 (D.
Conn. May 19, 2017) (C.A.J.A. 21-30) .......... JA-62
ITEMS PREVIOUSLY REPRODUCED
In accordance with Supreme Court Rule 26.1, the
following items have been omitted in printing this
joint appendix because they appear on the following
pages of the appendix to the Petition for a Writ of
Certiorari (September 16, 2020):
Opinion of the United States Court of Appeals
for the District of Columbia Circuit,
Government of Guam v. United States, 950
F.3d 104 (D.C. Cir. Feb. 14, 2020) .......................1a
ii
TABLE OF CONTENTS—Continued
Page
Memorandum Opinion of the United States
District Court for the District of Columbia
Certifying
Interlocutory
Appeal,
Government of Guam v. United States, No.
1:17-cv-2487 (KBJ), 2019 WL 1003606
(D.D.C. Feb. 28, 2019) .......................................27a
Memorandum Opinion of the United States
District Court for the District of Columbia
Denying Motion to Dismiss, Government of
Guam v. United States, No. 1:17-cv-2487
(KBJ), 341 F. Supp. 3d 74 (D.D.C. Oct. 5,
2018) ...................................................................51a
Order of the United States Court of Appeals
for the District of Columbia Circuit
Denying Panel Rehearing, Government of
Guam v. United States, No. 19-1531 (D.C.
Cir. May 13, 2020) .............................................98a
Order of the United States Court of Appeals
for the District of Columbia Circuit
Denying Rehearing En Banc, Government
of Guam v. United States, No. 19-1531
(D.C. Cir. May 13, 2020) ....................................99a
Complaint for Injunctive Relief and Civil
Penalties Under the Clean Water Act,
United States v. Government of Guam, No.
02-cv-00022 (D. Guam Aug. 7, 2002)
(C.A.J.A. 82-88) ................................................130a
Consent Decree, United States v. Government
of Guam, No. 02-cv-00022 (D. Guam Feb.
11, 2004) (C.A.J.A. 90-119) ..............................138a
JA-1
RELEVANT DOCKET ENTRIES
U.S. Court of Appeals for the District of
Columbia Circuit
Case No. 19-5131
Date Filed Docket Text
05/08/2019
US CIVIL CASE docketed. [19-5131]
[Entered: 05/08/2019 01:27 PM]
05/08/2019
NOTICE OF APPEAL [1786855]
seeking review of a decision by the U.S.
District Court in 1:17-cv-02487-KBJ
filed by USA. Appeal assigned USCA
Case Number: 19-5131. [19-5131]
[Entered: 05/08/2019 01:28PM]
***
06/25/2019
APPELLANT BRIEF [1794484] filed by
USA [Service Date: 06/25/2019 ] Length
of Brief: 10,703 words.
[19-5131]
(Heron, Rachel) [Entered: 06/25/2019
04:34 PM]
06/25/2019
JOINT APPENDIX [1794487] filed by
USA. [Volumes: 1] [Service Date:
06/25/2019 ] [19-5131] (Heron, Rachel)
[Entered: 06/25/2019 04:37 PM]
07/25/2019
APPELLEE BRIEF [1799181] filed by
Government of Guam [Service Date:
07/25/2019 ] Length of Brief: 12,851
words. [19-5131] (Gilmour, John)
[Entered: 07/25/2019 08:44 PM]
JA-2
Date Filed Docket Text
07/29/2019
LETTER [1799365] sent to counsel
concerning the use of uncommon
acronyms and abbreviations in briefs.
[19-5131] [Entered: 07/29/2019 07:41
AM]
08/05/2019
CORRECTED APPELLEE BRIEF
[1800768] filed by Government of Guam
[Service Date: 08/05/2019 ] Length of
Brief: 12861. [19-5131] (Gilmour, John)
[Entered: 08/05/2019 05:29 PM]
08/15/2019
APPELLANT REPLY BRIEF [1802438]
filed by USA [Service Date: 08/15/2019 ]
Length of Brief: 6,494 words. [19-5131]
(Heron, Rachel) [Entered: 08/15/2019
04:47 PM]
***
11/04/2019
LETTER [1814079] pursuant to FRAP
28j advising of additional authorities
filed by USA [Service Date: 11/04/2019 ]
[19-5131] (Heron, Rachel) [Entered:
11/04/2019 01:24 PM]
11/05/2019
RESPONSE
[1814488]
to
letter
[1814079-2], letter [1814079-3] filed by
Government of Guam [Service Date:
11/05/2019 by CM/ECF NDA] Length
Certification: 349 words. [19-5131]
(Stern, Bezalel) [Entered: 11/05/2019
05:38 PM]
JA-3
Date Filed Docket Text
11/12/2019
ORAL ARGUMENT HELD before
Judges Henderson, Tatel and Ginsburg.
[19-5131] [Entered: 11/12/2019 10:22
AM]
11/12/2019
PER CURIAM ORDER [1815327] filed,
on the court’s own motion, that the
parties
file
supplemental
briefs
addressing two issues (SEE ORDER
FOR
ISSUES).
Appellant’s
and
appellee’s supplemental briefs may not
exceed 2,600 words. Appellant’s reply
brief may not exceed 1,300 words.
Appellant’s supplemental brief is due
no later than 4:00 p.m. on November 19,
2019; appellee’s supplemental brief is
due no later than 4:00 p.m. on
November
25,
2019;
appellant’s
supplemental reply brief is due no later
than 4:00 p.m. on November 27, 2019.
In addition to electronic filing, paper
copies of the submissions are to be
hand-delivered to the court by the time
and date due. Before Judges:
Henderson, Tatel and Ginsburg. [195131] [Entered: 11/12/2019 03:46 PM]
11/19/2019
APPELLANT
SUPPLEMENTAL
BRIEF [1816444] filed by USA [Service
Date: 11/19/2019 ] Length of Brief:
2,587 words. [19-5131] (Heron, Rachel)
[Entered: 11/19/2019 11:52 AM]
JA-4
Date Filed Docket Text
11/25/2019
APPELLEE SUPPLEMENTAL BRIEF
[1817476] filed by Government of Guam
[Service Date: 11/25/2019 ] Length of
Brief: 2461. [19-5131] (Stern, Bezalel)
[Entered: 11/25/2019 02:27 PM]
11/27/2019
APPELLANT
SUPPLEMENTAL
REPLY BRIEF [1817859] filed by USA
[Service Date: 11/27/2019 ] Length of
Brief: 1,299 words. [19-5131] (Heron,
Rachel) [Entered: 11/27/2019 10:31 AM]
02/14/2020
PER CURIAM JUDGMENT [1828592]
filed that the District Court’s denial of
the United States’ motion to dismiss be
reversed, and the case be remanded to
the District Court with instructions to
dismiss the complaint, for the reasons
in the accompanying opinion . Before
Judges:
Henderson,
Tatel
and
Ginsburg.
[19-5131]
[Entered:
02/14/2020 10:28 AM]
02/14/2020
OPINION [1828593] filed (Pages: 24)
for the Court by Judge Tatel. [19-5131]
[Entered: 02/14/2020 10:30 AM]
02/14/2020
CLERK’S ORDER [1828594] filed
withholding issuance of the mandate.
[19-5131] [Entered: 02/14/2020 10:31
AM]
***
04/29/2020
PETITION [1840606] for rehearing, for
rehearing en banc filed by Appellee
Government of Guam [Service Date:
JA-5
Date Filed Docket Text
04/29/2020 by CM/ECF NDA] Length
Certification: 3,349 words. [19-5131]
(Gilmour, John) [Entered: 04/29/2020
09:10 PM]
05/13/2020
PER CURIAM ORDER, En Banc,
[1842653] filed denying appellee’s
petition for rehearing en banc
[1840606-3] Before Judges: Srinivasan,
Henderson, Rogers, Tatel, Garland,
Griffith, Millett, Pillard, Wilkins,
Katsas, Rao and Ginsburg. [19-5131]
[Entered: 05/13/2020 02:40 PM]
05/13/2020
PER CURIAM ORDER [1842655] filed
denying
appellee’s
petition
for
rehearing [1840606-2] Before Judges:
Henderson, Tatel and Ginsburg. [195131] [Entered: 05/13/2020 02:42 PM]
05/21/2020
MANDATE ISSUED to Clerk, U.S.
District Court. [19-5131] [Entered:
05/21/2020 12:19 PM]
09/24/2020
LETTER [1863490] received from the
Clerk of the Supreme Court of the
United States notifying this court of the
following activity in the case before it: A
petition for writ of certiorari was filed
and placed on the docket on 09/24/2020
as No. 20-382. [19-5131] [Entered:
09/25/2020 04:28 PM]
12/21/2020
TRANSCRIPT [1877124]
argument
[19-5131]
12/23/2020 01:31 PM]
of oral
[Entered:
JA-6
RELEVANT DOCKET ENTRIES
U.S. District Court for the
District of Columbia (Washington, DC)
Case No. 1:17-cv-0248 7-KBJ
Date Filed
#
Docket Text
03/02/2017
1
COMPLAINT against United
States Department of Navy ( Filing
fee $400 receipt number 02054317208.), filed by Territory of
Guam. (Attachments: # 1 Civil
Cover Sheet) (Lorenzo, Marisa)
[Transferred from Connecticut on
11/20/2017.] (Entered: 03/02/2017)
***
03/02/2017
4
STANDING
ORDER.
PROTECTIVE
Signed by Judge Vanessa L. Bryant
on
03/02/2017.
(Shafer,
J.)
[Transferred from Connecticut on
11/20/2017.] (Entered: 03/03/2017)
***
05/19/2017
7
AMENDED COMPLAINT against
United States Department of
Navy, filed by Territory of
Guam.(Lorenzo,
Marisa)
[Transferred from Connecticut on
11/20/2017.] (Entered: 05/19/2017)
***
JA-7
Date Filed
#
Docket Text
07/10/2017
11
MOTION to Stay and Request for
Expedited Consideration by USA.
Responses due by 7/31/2017
(Attachments: # 1 Memorandum in
Support, # 2 Text of Proposed
Order)
(Augustini,
Michael)
[Transferred from Connecticut on
11/20/2017.] (Entered: 07/10/2017)
07/10/2017
12
MOTION to Transfer to Another
District by USA. (Attachments: # 1
Memorandum in Support, # 2
Affidavit Declaration of Jamie
Blow, # 3 Affidavit Declaration of
Dale J. Gordon, # 4 Affidavit
Declaration of Joseph Ludovici, # 5
Affidavit Declaration of Rochelle
L. Russell)(Augustini, Michael)
[Transferred from Connecticut on
11/20/2017.] (Entered: 07/10/2017)
***
07/12/2017
07/12/2017
14
ORDER granting 11 Motion to
Stay for 90 days. Signed by Judge
Vanessa L. Bryant on 07/12/2017.
(Lee, E.) [Transferred from
Connecticut
on
11/20/2017.]
(Entered: 07/12/2017)
Answer deadline updated for USA
to
10/22/2017.
(Lee,
E.)
[Transferred from Connecticut on
11/20/2017.] (Entered: 07/12/2017)
JA-8
Date Filed
#
Docket Text
07/31/2017
15
Memorandum in Opposition re 12
MOTION to Transfer to Another
District filed by Territory of Guam.
(Attachments: # 1 Declaration of
John D.S. Gilmour in Support of
Government
of
Guam’s
Memorandum in Opposition to
Defendant United States of
America’s Motion to Transfer
Venue)(Lorenzo,
Marisa)
[Transferred from Connecticut on
11/20/2017.] (Entered: 07/31/2017)
08/01/2017
16
ORDER. The 15 Memorandum in
Opposition and declaration shall
be refiled in accordance with the
first paragraph of 5 Chambers
Practices.
Signed by Judge
Vanessa L. Bryant on 08/01/2017.
(Shafer, J. ) [Transferred from
Connecticut
on
11/20/2017.]
(Entered: 08/01/2017)
08/01/2017
17
Memorandum
in
Opposition
(refiled per Court’s Order 16 ) re 12
MOTION to Transfer to Another
District filed by Territory of Guam.
(Attachments:
#
1
refiled
Declaration
of
John
D.S.Gilmour)(Lorenzo,
Marisa)
[Transferred from Connecticut on
11/20/2017.] (Entered: 08/01/2017)
JA-9
Date Filed
#
Docket Text
08/11/2017
18
REPLY to Response to 12
MOTION to Transfer to Another
District
filed
by
USA.
(Attachments: # 1 Affidavit
Matthew
Woolner)(Augustini,
Michael)
[Transferred
from
Connecticut
on
11/20/2017.]
(Entered: 08/11/2017)
10/05/2017
19
Consent MOTION to Stay and
Request
For
Expedited
Consideration by USA.Responses
due by 10/26/2017 (Attachments:
# 1 Memorandum in Support,
#
2
Text
of
Proposed
Order)(Augustini,
Michael)
[Transferred from Connecticut on
11/20/2017.] (Entered: 10/05/2017)
10/05/2017
20
ORDER granting 19 Consent
Motion to Stay and Request for
Expedited Consideration. The stay
shall be lifted upon the Court’s
ruling on the 12 Motion to Transfer
to Another District. Signed by
Judge Vanessa L. Bryant on
10/05/2017. (Lee, E.) [Transferred
from Connecticut on 11/20/2017.]
(Entered: 10/05/2017)
10/11/2017
21
ORDER: The Clerk is directed to
amend the case caption and the
name of the parties to conform
with the Amended Complaint. See
Dkt. 7 . Signed by Judge Vanessa
JA-10
Date Filed
#
Docket Text
L. Bryant on 10/11/2017. (Lee, E.)
[Transferred from Connecticut on
11/20/2017.] (Entered: 10/11/2017)
10/27/2017
22
11/01/2017
23
11/02/2017
24
ORDER granting 12 Motion to
Transfer to Another District. This
case is hereby transferred to the
District Court for the District of
Columbia. The Clerk is directed to
close this case. Signed by Judge
Vanessa L. Bryant on 10/27/2017.
(Lee, E.) [Transferred from
Connecticut
on
11/20/2017.]
(Entered: 10/27/2017)
***
Consent MOTION Establish Date
Certain
For
Response
To
Complaint by USA.Responses due
by 11/22/2017 (Attachments: # 1
Memorandum in Support, # 2 Text
of Proposed Order)(Augustini,
Michael)
[Transferred
from
Connecticut
on
11/20/2017.]
(Entered: 11/01/2017)
ORDER granting 23 Consent
Motion Establish Date Certain For
Response To Complaint.
The
Government is ordered to file a
response to Guam’s amended
complaint within 10 days after the
Clerk transfers the action unless
otherwise instructed by this Court
or the District Court for the
JA-11
Date Filed
#
Docket Text
District of Columbia. Signed by
Judge Vanessa L. Bryant on
11/02/2017. (Lee, E.) [Transferred
from Connecticut on 11/20/2017.]
(Entered: 11/02/2017)
11/15/2017
25
Case transferred in from District
of Connecticut; Case Number 3:17cv-00371. Original file certified
copy of transfer order and docket
sheet received.
Modified on
11/20/2017
(zrdj).
(Entered:
11/20/2017)
***
11/27/2017
27
MOTION to Dismiss Guam’s
Amended Complaint by USA
(Attachments: # 1 Memorandum in
Support, # 2 Declaration Matthew
Woolner, # 3 Text of Proposed
Order)
(Augustini,
Michael)
(Entered: 11/27/2017)
***
12/11/2017
30
Memorandum in opposition to re
27 MOTION to Dismiss Guam’s
Amended Complaint filed by
GOVERNMENT
OF
GUAM.
(Attachments: # 1 Declaration
Declaration of Mark V. Donatiello,
# 2 Text of Proposed Order Text of
Proposed
Order)(Cushman,
Travis) (Entered: 12/11/2017)
***
JA-12
Date Filed
#
Docket Text
01/08/2018
33
REPLY to opposition to motion re
27 MOTION to Dismiss Guam’s
Amended Complaint filed by
UNITED
STATES
DEPARTMENT OF NAVY, USA.
(Alford,
Thomas)
(Entered:
01/08/2018)
***
Minute Entry for the Motion
Hearing proceedings held on
5/15/2018, before Judge Ketanji
Brown Jackson: Oral argument
heard re 27 MOTION to Dismiss
and taken under advisement.
(Court Reporter: Sara Wick) (gdf)
(Entered: 05/15/2018)
05/15/2018
09/30/2018
37
ORDER, that Defendants motion
to dismiss (ECF No.27) is
DENIED. Signed by Judge Ketanji
Brown Jackson on 9/30/2018.
(lckbj2) (Entered: 09/30/2018)
10/05/2018
38
MEMORANDUM
OPINION.
Signed by Judge Ketanji Brown
Jackson on 10/5/2018.
(lckbj2)
(Entered: 10/05/2018)
10/05/2018
MINUTE ORDER. Consistent
with this Court’s Memorandum
Opinion, it is ORDERED that
Count III of Plaintiff’s Amended
Complaint
under
section
9613(f)(3)(B) of Title 42 of the
JA-13
Date Filed
#
Docket Text
United
States
Code
is
DISMISSED, given that such
contribution actions may not be
maintained when a viable costrecovery action under section
9607(a) of Title 42 of the United
States Code is available. Signed by
Judge Ketanji Brown Jackson on
10/5/2018.
(lckbj2)
(Entered:
10/05/2018)
MINUTE ORDER. It is hereby
ORDERED that the parties in this
case shall file a joint status report,
on or before October 19, 2018,
advising this Court of how they
wish to proceed in the instant
matter. Signed by Judge Ketanji
Brown Jackson on 10/5/2018.
(lckbj2) (Entered: 10/05/2018)
10/05/2018
10/15/2018
39
United
States
of
America’s
ANSWER
to
7
Amended
Complaint , COUNTERCLAIM
against
GOVERNMENT
OF
GUAM
by
USA.(Augustini,
Michael) (Entered: 10/15/2018)
10/19/2018
40
Joint STATUS REPORT by
GOVERNMENT
OF
GUAM.
(Cushman,
Travis)
(Entered:
10/19/2018)
***
JA-14
Date Filed
#
Docket Text
11/05/2018
43
Guam’s ANSWER to Counterclaim
39 , COUNTERCLAIM against
USA by GOVERNMENT OF
GUAM.(Cushman,
Travis)
(Entered: 11/05/2018)
***
11/06/2018
45
TRANSCRIPT
OF
MOTION
HEARING before Judge Ketanji
Brown
Jackson,
held
on
05/15/2018. Page Numbers: 1-73.
Date of Issuance: 11/6/2018. Court
Reporter: Sara A. Wick, Telephone
number 202-354-3284. Transcripts
may be ordered by submitting the
Transcript Order Form
***
11/28/2018
46
ANSWER to Counterclaim 43 by
USA.(Augustini,
Michael)
(Entered: 11/28/2018)
***
12/06/2018
12/06/2018
49
MOTION for Leave to Appeal ,
MOTION to Stay by USA
(Attachments: # 1 Memorandum in
Support, # 2 Text of Proposed
Order)(Augustini,
Michael)
(Entered: 12/06/2018)
MINUTE ORDER. In light of
Defendant’s 49 Motion to Certify
the
Dismissal
Orders
for
Interlocutory Appeal, it is hereby
ORDERED that the initial
JA-15
Date Filed
#
Docket Text
scheduling conference currently
set for 12/13/2018 is VACATED
and will be reset by the Court at a
later date, if necessary. Signed by
Judge Ketanji Brown Jackson on
12/6/2018.
(lckbj1)
(Entered:
12/06/2018)
12/07/2018
50
Emergency MOTION for Order for
Reinstatement of the Rule 26
Scheduling
Conference
by
GOVERNMENT
OF
GUAM
(Attachments: # 1 Text of Proposed
Order Reinstating Scheduling
Conference)(Stern,
Bezalel)
(Entered: 12/07/2018)
12/10/2018
51
Memorandum in opposition to re
50 Emergency MOTION for Order
for Reinstatement of the Rule 26
Scheduling Conference filed by
USA.
(Augustini,
Michael)
(Entered: 12/10/2018)
12/10/2018
MINUTE ORDER. On December
6, 2018, the United States filed a
motion seeking certification for
interlocutory appeal of this Court’s
denial of the United States’ motion
to dismiss Guam’s amended
complaint. (See ECF No. 49 .) In
light of this motion, and in the
interest of judicial efficiency, this
Court
vacated
the
initial
scheduling conference that had
JA-16
Date Filed
#
Docket Text
been set for December 13, 2018.
(See Minute Order of Dec. 6, 2018).
Guam has now filed a motion
seeking reinstatement of the
initial
scheduling
conference,
arguing that the United States is
still awaiting final authorization of
from the Solicitor General to
proceed with an interlocutory
appeal, and that “an interlocutory
appeal should be discussed as part
of case management.” (ECF No.
50 , at 2.) When there is a pending
motion that may obviate the need
for any discovery in a matter, it is
this Court’s typical practice to
resolve
that
motion
before
proceeding
with
an
initial
scheduling
conference.
Accordingly, this Court will DENY
Guam’s request for reinstatement
of the initial scheduling conference
at this point in time. However, this
Court expects the United States to
determine promptly whether it
will pursue an interlocutory
appeal, and to that end, it is
hereby ORDERED that the United
States shall inform this Court in
its reply brief on the motion for
certification whether the Solicitor
General has provided the requisite
authorization to proceed with the
appeal. If the Solicitor General has
JA-17
Date Filed
#
Docket Text
not determined whether to
authorize an appeal by the due
date for the reply brief, this Court
will enter an Order resetting the
initial scheduling conference for
Tuesday, January 15, 2019, at 2:45
PM. Signed by Judge Ketanji
Brown Jackson on 12/10/2018.
(lckbj1) (Entered: 12/10/2018)
12/20/2018
52
Memorandum in opposition to re
49 MOTION for Leave to Appeal
MOTION to Stay filed by
GOVERNMENT
OF
GUAM.
(Attachments: # 1 Text of Proposed
Order)(Stern, Bezalel) (Entered:
12/20/2018)
12/27/2018
53
REPLY to opposition to motion re
49 MOTION for Leave to Appeal
MOTION to Stay filed by USA.
(Augustini, Michael) (Entered:
12/27/2018)
***
02/28/2019
55
MEMORANDUM
OPINION.
GRANTING
Defendant’s
49
Motion for Leave to Appeal and
STAYING case pending decision
by D.C. Circuit. Signed by Judge
Ketanji
Brown
Jackson
on
2/28/2019.
(lckbj2)
(Entered:
02/28/2019)
JA-18
Date Filed
#
Docket Text
02/28/2019
56
ORDER. GRANTING Defendant’s
49 Motion for Leave to Appeal and
STAYING case pending decision
by D.C. Circuit. Signed by Judge
Ketanji
Brown
Jackson
on
2/28/2019.
(lckbj2)
(Entered:
02/28/2019)
05/02/2019
57
ORDER of USCA, ORDERED that
the petition for permission to
appeal be granted USCA Case
Number 19-8001. (zrdj) (Entered:
05/07/2019)
05/02/2019
58
NOTICE OF INTERLOCUTORY
APPEAL as to 37 Order on Motion
to Dismiss, 38 Memorandum &
Opinion by USA. Fee Status: No
Fee Paid. Parties have been
notified.
(zrdj)
(Entered:
05/07/2019)
05/02/2019
59
Transmission of the Notice of
Appeal,
Order
Appealed
(Memorandum
Opinion),
and
Docket Sheet to US Court of
Appeals. The Court of Appeals
docketing fee was not paid because
the appeal was filed by the
government re 58 Notice of
Interlocutory
Appeal.
(zrdj)
(Entered: 05/07/2019)
JA-19
Date Filed
#
Docket Text
USCA Case Number 19-5131 for
58 Notice of Interlocutory Appeal
filed by USA. (ztd) (Entered:
05/08/2019)
05/08/2019
***
05/21/2020
61
MANDATE of USCA as to 58
Notice of Interlocutory Appeal
filed by USA ; USCA Case Number
19-5131. (Attachment: # 1 USCA
Judgment)(zsb)
(Entered:
05/21/2020)
05/27/2020
62
ORDER TO SHOW CAUSE why
complaint should not be dismissed.
Show Cause Response due by
6/22/2020. Signed by Judge
Ketanji
Brown
Jackson
on
05/27/2020.
(jag)
(Entered:
05/27/2020)
06/19/2020
63
RESPONSE TO ORDER TO
SHOW
CAUSE
by
GOVERNMENT OF GUAM re 62
Order to Show Cause filed by
GOVERNMENT
OF
GUAM.
(Attachments: # 1 Exhibit 1 Petition
for
Rehearing
En
Banc)(Stern, Bezalel) (Entered:
06/19/2020)
06/19/2020
64
RESPONSE re 63 to Guam’s show
cause filing filed by USA.
(Augustini, Michael) . (Entered:
06/19/2020)
JA-20
Date Filed
#
Docket Text
06/19/2020
65
MOTION
to
Stay
by
GOVERNMENT OF GUAM. (See
Docket Entry 63 to view
document).
(znmw)
(Entered:
06/23/2020)
MINUTE ORDER. In light of the
representations in the parties’
responses to this Court’s Order to
Show Cause, it is hereby
ORDERED that this case is
STAYED until further Order of
this Court.
It is FURTHER
ORDERED that, notwithstanding
this stay, the parties shall file a
further status report on or before
10/17/2020, updating this Court on
whether any petition for certiorari
has been filed. Signed by Judge
Ketanji
Brown
Jackson
on
6/22/2020.
(jag)
(Entered:
06/22/2020)
06/22/2020
***
10/09/2020
10/13/2020
66
STATUS
REPORT
by
GOVERNMENT
OF
GUAM.
(Attachments: # 1 Exhibit A Petition
for
Writ
of
Certiorari)(Stern,
Bezalel)
(Entered: 10/09/2020)
MINUTE ORDER. In light of the
representations in Plaintiff’s 66
Status Report, it is hereby
ORDERED that the parties shall
JA-21
Date Filed
#
Docket Text
file a joint status report within 30
days of the conclusion of
proceedings before the United
States Supreme Court. Signed by
Judge Ketanji Brown Jackson on
10/13/2020.
(jag)
(Entered:
10/13/2020)
JA-22
[List of counsel omitted]
FILED
DISTRICT COURT OF
GUAM
FEB 02 2004
MARY L. M. MORAN
CLERK OF COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE TERRITORY OF GUAM
UNITED STATES
OF AMERICA,
Plaintiff,
vs.
GOVERNMENT OF
GUAM,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CIVIL CASE
NO. 02-00022
MEMORANDUM IN
SUPPORT OF MOTION
TO ENTER CONSENT
DECREE
Date: February 11, 2004
Time: 9:00 a.m.
***
On August 7, 2002, the United States filed a
Complaint in this case under Section 309 of the Clean
Water Act (the “Act” or “CWA”), 33 U.S.C. § 1319,
alleging that the Government of Guam (“GovGuam”)
violated the Act by: (1) discharging pollutants from
the Ordot Dump to waters of the United States
without a National Pollutant Discharge Elimination
System (“NPDES”) permit; and (2) violating the terms
JA-23
of an Order from the U.S. Environmental Protection
Agency (“EPA”), requiring GovGuam to eliminate the
unpermitted discharges. The United States sought
both injunctive relief and civil penalties to address
the violations of the Act.
The United States lodged a proposed Consent
Decree, which had been fully signed by the parties,
with the Court on December 3, 2003. After lodging
the Consent Decree, the United States published
notice of the Consent Decree in the Federal Register
and requested public comment on the proposed
Decree for a period of thirty days. See 68 Fed. Reg.
70,533 (Dec. 18, 2003).1 During the 30-day public
comment period, the United States received a
comment letter from the law firm of Calvo and Clark,
LLP, counsel to Guam Resource Recovery Partners,
and a comment letter from a citizens’ group called
“Concerned Citizens to Close Ordot,” expressing
objections to the proposed Decree.2
The United States has carefully considered these
comment letters. After this review, the United States
has concluded that none of the comments raised
issues that would cause the United States to
withdraw its consent to the Consent Decree. The
United States continues to regard the Consent Decree
as fair, reasonable, and consistent with the purposes
of the Clean Water Act. Therefore, the United States
respectfully moves this Court to approve, sign, and
1
A copy of the Federal Register notice is included as Exhibit
1 to this Memorandum.
2
The comment letters are included as Exhibit 2 to this
Memorandum.
JA-24
enter the Consent Decree that was lodged with the
Court on December 3, 2003.
I. BACKGROUND
A. Clean Water Act
The objective of the Clean Water Act is to restore
and maintain the chemical, physical, and biological
integrity of the Nation’s waters. 33 U.S.C. § 1251(a).
In order to achieve this objective, CWA Section 301(a),
33 U.S.C. § 1311(a), prohibits the discharge of
pollutants into waters of the United States by any
persons except as authorized by, and in compliance
with, specific sections of the Act. Pursuant to CWA
Section 402, 33 U.S.C. § 1342, EPA may issue an
NPDES permit to authorize discharges of pollutants
into waters of the United States. Such discharges are
subject to the conditions and limitations set forth in
the NPDES permit.
EPA has broad authority under CWA Section
309(a), 33 U.S.C. § 1319(a), to issue compliance orders
to persons whenever EPA finds that a person has
violated Section 301 of the Act. In addition, Section
309(b) authorizes EPA to commence a civil action for
appropriate relief, including a permanent or
temporary injunction, against any person who
violates CWA Section 301 and for any violation for
which EPA is authorized to issue a compliance order.
Pursuant to CWA Section 309(d), 33 U.S.C. § 1319(d),
any person who violates CWA Section 301 or an order
issued by EPA under Section 309(a) is subject to civil
penalties not to exceed $25,000 per day for each
violation that occurred on or before January 30, 1997.
The maximum civil penalty has been increased to
$27,500 per day per violation for violations after
January 30, 1997. 40 C.F.R. §§ 19.2, 19.4.
JA-25
B. The Ordot Dump
GovGuam owns and operates the Ordot Dump,
which is located on high ground north of the Lonfit
River.3 Because the Dump is unlined on its bottom
and uncapped at its top, it acts like a sponge,
retaining rain water and releasing it after it has
percolated through the landfill and absorbed
contaminants. As a direct result of these conditions,
the Ordot Dump has discharged, and continues to
discharge, leachate into the Lonfit River along the
surface of the ground via two streams.
In addition, there have been a series of major fires
at the Ordot Dump in 1998, 2000, 2002, and 2003.
Smoke from Dump fires has caused the temporary
evacuation of residents in the nearby village of Ordot.
Odors and vectors (rats, flies, and mosquitoes) have
also been serious and constant problems. Both the
residents of Guam and individual agencies of
GovGuam have expressed their frustration and lack
of ability to get the Ordot Dump closed and a new
sanitary landfill opened.
The Ordot Dump serves Guam’s civilian
population of about 115,000 and currently receives
about 255 tons of municipal solid waste per day. It is
the only municipal landfill on the Island of Guam and
is already filled beyond capacity.
The Guam
Legislature has attempted to address the landfill
issue, including setting deadlines for closure of the
Ordot Dump. However, GovGuam has not been able
to come up with a political consensus or the funding
required for closure. Thus, the Dump remains open,
3
The Lonfit River merges with the Sigua River to form the
Pago River and then drains into Pago Bay and the Pacific Ocean.
JA-26
leachate discharges continue, and the Dump remains
a public nuisance.
C. EPA’s Administrative Actions Involving the
Ordot Dump
1. EPA’s CERCLA Investigation
On June 1, 1982, EPA Region 9 approved a “formal
investigation” of the Ordot Dump under the
Comprehensive
Environmental
Response,
Compensation, and Liability Act (“CERCLA”). The
Ordot Dump was included on the original National
Priorities List. In a 1988 Record of Decision, EPA
decided to take no further action under CERCLA to
address the Dump. EPA concluded that “applying
standard operation practices to control landfill
leachate to receiving waters” and “improved leachate
control measures consisting of capping and surface
water control” could be implemented through
enforcement of EPA’s 1986 Order under the CWA.
(See Section C.2. below.)
2. EPA’s Clean Water Act Actions
EPA issued administrative Orders under the CWA
against GovGuam in both 1986 and 1990. The 1986
EPA Order required GovGuam to submit a detailed
compliance plan by May 1, 1986, assess landfill
operations by June 15, 1986, assess past discharges
by May 1, 1986, and cease the discharges by May 1,
1987.
Despite the administrative Order, GovGuam
continued to discharge and violated other provisions
of the 1986 Order. EPA filed an administrative
complaint against GovGuam in 1989 for the discharge
of untreated leachate from the Dump and settled the
case in May 1990. GovGuam paid a civil penalty of
JA-27
$15,000 and performed a $40,000 Supplemental
Environmental Project (“SEP”).4
EPA issued another administrative Order
pursuant to the CWA in July 1990, requiring
GovGuam to cover the Ordot Dump to prevent
discharges by June 30, 1992, and to submit plans for
capping and for the continued operations for the
remaining life of the landfill. The 1990 Order did not
explicitly require closure. In February 1991, EPA
approved an extension of the cover deadline to August
15, 1992. That deadline was missed and the capping
was never done.
In April 1997, EPA amended the 1990 Order to
require, by July 9, 1997, a schedule for the design of a
cover system to eliminate the untreated leachate
discharges.
GovGuam submitted a proposed
schedule. In September 1997, EPA rejected the
schedule because it lacked funding commitments to
make the plan credible. GovGuam has continued to
fail to comply with the amended 1990 Order.
II. THE COMPLAINT AND CONSENT DECREE
A. Complaint
On August 7, 2002, the United States filed a
Complaint against GovGuam under the Act. The
Complaint alleged that: (1) GovGuam does not have a
4
EPA’s policy defines a Supplemental Environmental Project
(“SEP”) as an environmentally beneficial project that a
defendant undertakes in settlement of an enforcement action. In
order to qualify under EPA’s policy, the project must be one that
the defendant is not otherwise legally obligated to perform. The
costs incurred by the defendant in performing the SEP may be
considered by EPA as one factor in determining an appropriate
penalty amount.
JA-28
permit from EPA authorizing the discharge of any
pollutant from the Ordot Dump to waters of the
United States; (2) from at least 1988 to the present,
GovGuam has routinely discharged untreated
leachate from the Ordot Dump into the Lonfit River
and two of its tributaries; (3) leachate is a pollutant
under the Act; (4) the Lonfit River and its tributaries
are waters of the United States; and (5) the Ordot
Dump and the earthen channels, gullies, trenches,
and ditches that carry leachate to the Lonfit River’s
tributaries are point sources under the Act. The
United States also alleged that, in response to EPA’s
administrative Order, GovGuam failed to submit a
compliance schedule that contained an unconditional
source of funding and failed to construct a closure
system at the Ordot Dump. The United States sought
civil penalties and injunctive relief for violations of
the Act.
B. Consent Decree
The United States had negotiated with GovGuam
for over a year before filing the Complaint in this case.
After the Complaint was filed, the parties
participated in a number of Court-supervised
negotiations beginning in November 2002, and were
able to reach agreement on the terms of the Consent
Decree that the United States lodged with the Court
on December 3, 2003.
The Consent Decree sets out a schedule for the
closure of the Ordot Dump and the opening of a new
sanitary landfill. Pursuant to the Decree, Guam
Department of Public Works (“Guam DPW”) is
required to submit a closure plan that includes a site
investigation, a baseline survey, and the design of a
landfill cover system and a perimeter surface water
JA-29
diversion system. Guam DPW is also required to
submit a permit application to Guam EPA to comply
with requirements for the disposal of municipal solid
waste at Ordot Dump for the interim period until the
Dump is closed. Guam DPW will also need to obtain
the Army Corps of Engineers’ approval of a Wetland
Mitigation Plan for the closure. After its closure plan
is approved, Guam DPW is required to award a
construction contract for closure, complete closure,
begin implementing a post-closure plan, and certify
that it no longer accepts municipal waste at Ordot
Dump.
The Ordot Dump is presently the sole municipal
landfill on Guam. Thus, in addition to requiring the
closure of the Ordot Dump, the Consent Decree also
directs Guam DPW to construct and operate a new
sanitary landfill. The Decree requires Guam DPW to
complete an Environmental Impact Statement
regarding at least 3 alternative sites for the new
landfill, choose a site, and submit design and
construction plans to EPA. Thereafter, Guam DPW
must submit a permit application and obtain a permit
from Guam EPA, submit a permit application and
obtain a Wetland Development Permit from the Army
Corps of Engineers, award a construction contract,
and construct and operate a new sanitary landfill.
The Consent Decree requires GovGuam to spend
$1 million for a SEP to develop and implement a
comprehensive waste diversion strategy for
household hazardous waste on Guam. Currently,
Guam has no system in place to regulate the disposal
of household hazardous waste. Pursuant to the
Consent Decree, GovGuam will: (1) develop a service
for residents to properly dispose of such wastes; (2)
produce a guide and public education program to
JA-30
inform the public about the type of wastes, alternative
products, and disposal options; and (3) construct and
operate a hazardous waste holding facility to allow
recycling, reuse, or disposal of hazardous wastes at an
EPA-approved facility. Finally, the Consent Decree
requires GovGuam to pay a civil penalty of $200,000
in a series of installments.
III. STANDARD OF REVIEW FOR ENTRY OF A
PROPOSED CONSENT DECREE
Approval of a proposed consent decree is
committed to the informed discretion of the district
court. United States v. State of Oregon, 913 F.2d 576,
580 (9th Cir. 1990). The court’s discretion should be
exercised in favor of the strong policy favoring
voluntary settlement of litigation. Ahern v. Central
Pacific Freight Lines, 846 F.2d 47, 48 (9th Cir. 1988);
accord SEC v. Randolph, 736 F.2d 525, 528 (9th Cir.
1984) (“[t]he use of consent decrees encourages
informal resolution of disputes, thereby lessening the
risks and costs of litigation”). Judicial deference to
negotiated settlements is particularly appropriate
when a government agency charged with protecting
the public interest ‘has pulled the laboring oar in
constructing the proposed settlement.”’ United States
v. Montrose Chemical Corp. of California, 50 F.3d
741, 746 (9th Cir. 1995); see also United States v.
Akzo Coatings of Am. Inc., 949 F.2d 1409, 1436 (6th
Cir. 1991) (judicial deference to a government
settlement is “particularly strong where a consent
decree has been negotiated by the Department of
Justice on behalf of a federal administrative agency
like EPA which enjoys substantial expertise in the
environmental field”). Accordingly, “a district court
reviewing a proposed consent decree ‘must refrain
JA-31
from second-guessing the Executive Branch.”’
Montrose Chemical Corp., 50 F.3d at 746 (quoting
United States v. Cannons Eng’g Corp., 899 F.2d 79,
84 (1st Cir. 1990)); see also United States v. Bechtel
Corp., 648 F.2d 660, 666 (9th Cir. 1981) (the balancing
of interests “must be left, in the first instance, to the
discretion of the Attorney General”).
The trial court should enter the consent decree if
it is fair, reasonable, and consistent with the purposes
that the statute is intended to serve. Montrose
Chemical Corp., 50 F.3d at 747; see Sierra Club. Inc.
v. Electronic Controls Design, Inc., 909 F.2d 1350,
1355 (9th Cir. 1990) (in a CWA case, Ninth Circuit
concluded that the court may enter the consent decree
as long as the decree comes within the general scope
of the case made by the pleadings, furthers the
statute’s objectives, and does not violate the statute).
In undertaking its review, a court is not required to
make the same in-depth analysis of a proposed
settlement that it would be required to make in order
to enter a judgment on the merits after trial: “[t]he
trial court in approving a settlement need not inquire
into the precise legal rights of the parties nor reach
and resolve the merits of the claims or controversy,
but need only determine that the settlement is fair,
adequate, reasonable and appropriate under the
particular facts and that there has been valid consent
by the concerned parties.” Citizens for a Better Env’t
v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983);
accord United States v. State of Oregon, 913 F.2d at
582.
A court does not have the authority to modify the
decree. Instead, it must either accept or reject the
decree as submitted. See Officers for Justice v. Civil
Serv. Comm’n , 688 F.2d 615, 630 (9th Cir. 1982). The
JA-32
relevant standard is “not whether the settlement is
one which the court itself might have fashioned, or
considers as ideal, but whether the proposed decree is
fair, reasonable, and faithful to the objectives of the
governing statute.” Cannons, 899 F.2d at 84.
In sum, the Court’s role in reviewing this Consent
Decree is limited. Broad deference should be afforded
to EPA’s expertise in determining an appropriate
settlement and to the voluntary agreement of the
parties in proposing the settlement. If the Consent
Decree is fair, reasonable, and consistent with
applicable law, it ought to be approved. Since this
Consent Decree meets the standards for entry, the
United States requests the Court to approve and
enter it.
IV. THE CONSENT DECREE IS FAIR,
REASONABLE, AND CONSISTENT WITH
THE PURPOSES OF THE CLEAN WATER
ACT
A. The Consent Decree is Procedurally and
Substantively Fair
Courts evaluate both the procedural and
substantive fairness of settlements. Cannons, 899
F.2d at 86.
Procedural fairness concerns the
negotiation process; courts assess whether the
process was open and at arm’s length. United States
v. BP Exploration & Oil Co., 167 F. Supp. 2d 1045,
1051 (N.D. Ind. 2001). A consent decree’s substantive
fairness “incorporates ‘concepts of corrective justice
and accountability: a party should bear the cost of
harm for which it is legally responsible.”’ United
States v. Telluride Co., 849 F. Supp. 1400, 1402 (D.
Colo. 1994).
JA-33
In this instance, the United States negotiated with
GovGuam representatives for over one year before the
Complaint was filed. The parties also participated in
Court-supervised negotiations since November 2002.
Both parties were represented by counsel and
engineers and closely negotiated the terms of the
settlement that was presented to the Court in
December 2003. It is undisputed that this Consent
Decree is the product of arm’s length negotiations.
In addition, the Consent Decree is substantively
fair.
In its administrative actions before the
Complaint was filed in this case, EPA sought to
require GovGuam to cap the Ordot Dump and to stop
leachate discharges from the Dump. Under the
Consent Decree, GovGuam bears the cost of harm for
which it is responsible. Not only does the Decree
require the cessation of leachate discharges from
Ordot Dump, it also mandates that GovGuam close
the Dump permanently and construct a new sanitary
landfill. Moreover, GovGuam will pay $1 million for
an SEP to develop and implement a comprehensive
waste diversion strategy for household hazardous
waste on Guam, which will prevent some hazardous
waste from ever being disposed in a landfill and will
protect the Nation’s waters from hazardous waste
discharges. The Consent Decree is therefore fair to
Guam residents, who have the right to expect that
they and the Island’s fragile environment will be
adequately protected, because it provides an
environmentally sound approach to Guam’s landfill
problem. Furthermore, steps toward compliance will
begin immediately and will not be delayed by
additional litigation.
JA-34
B. The Consent Decree is Reasonable
In discerning whether a consent decree is
reasonable, a court may consider whether the decree
is technically adequate, fully compensates the public
for the alleged violations, and takes into consideration
the risks of litigation. Telluride Co., 849 F. Supp. at
1403. Applying that standard here, the Court should
find that this Decree represents a reasonable
settlement of the CWA violations. As discussed
above, the Decree is technically adequate because it
contains specific, tailored relief that addresses the
violations alleged in the United States’ Complaint.
Moreover, it obtains this compliance without
requiring the parties to spend scarce resources to
litigate the case and without the attendant delay of
such litigation. The Decree requires payment of a
civil penalty that is appropriate under the
circumstances because it provides a deterrent effect
while taking into account GovGuam’s current fiscal
straits. The Decree also provides for an SEP that will
improve Guam’s management of solid waste and
prevent future harm to waters of the United States.
If the United States had litigated this case to
judgment, this SEP would not have been obtained as
injunctive relief because it is, by definition, a project
that is not required by law.
C. The Consent Decree is in the Public Interest
and Consistent with the Purpose of the Clean
Water Act
The role of the Court in reviewing an
environmental settlement is to determine “whether
the decree comports with the goals of Congress.”
Sierra Club v. Coca-Cola Corp., 673 F. Supp. 1555,
1556 (M.D. Fla. 1987). Thus, this Court should
JA-35
determine whether the Consent Decree “is in the
public interest and upholds the objectives of the Clean
Water Act, the primary of which is ‘to restore and
maintain the chemical, physical, and biological
integrity of the Nation’s waters.” Telluride Co., 849
F. Supp. at 1402-03. In making this determination,
“[t]he court should also bear in mind the flexibility of
the public interest inquiry: the court’s function is not
to determine whether the resulting array of rights
and liabilities ‘is the one that will best serve society,’
but only to confirm that the resulting settlement is
‘within the reaches of the public interest.”’ United
States v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C.
Cir. 1995) (citations omitted).
As described above, the settlement achieves,
without further litigation delays or costs,
environmental benefits by requiring GovGuam to
comply with a schedule for the closure of the Ordot
Dump and the opening of a new sanitary landfill. In
the closure plan, GovGuam will design a landfill cover
system and a perimeter surface water diversion
system to stop the discharge of leachate from the
Dump. The construction and operation of a new
sanitary landfill will end Guam’s dependence on the
Ordot Dump, thereby eliminating a long-standing
nuisance and bringing GovGuam into compliance
with the CWA. GovGuam’s development of a new
household hazardous waste diversion plan through
implementation of the SEP will also protect against
the future discharge of hazardous wastes to the
Nation’s waters. Thus, this Consent Decree furthers
the statutory goals of the Clean Water Act and serves
the public interest.
JA-36
V. THE COMMENTS ABOUT THE PROPOSED
CONSENT DECREE DO NOT PROVIDE A
BASIS
FOR
REJECTING
THE
SETTLEMENT
As noted above, the United States published notice
of the proposed Consent Decree for public comment
and received a comment letter from Calvo and Clark,
LLP, on behalf of Guam Resource Recovery Partners
(“GRRP”). According to GRRP, GovGuam and GRRP
executed a Solid Waste Construction and Services
Agreement (the “SWCS Agreement”) in 1996 that was
intended to finance the generation of electricity from
waste. GRRP notes that the validity of the SWCS
Agreement is currently being challenged in a case
that is pending in Guam’s Supreme Court. GRRP’s
letter contained four comments that are summarized
below.
The United States also received a comment letter
from a citizens’ group called “Concerned Citizens to
Close Ordot” (“CCCO”), enclosing a petition that
CCCO had previously presented to the Court in
2003.5 CCCO’s comment letter and petition contain
four comments that are summarized below.
Comment 1: Expansion of the Ordot Dump
GRRP - Expansion of the Ordot Dump should not be
permitted because it will complicate existing
environmental problems in the area, violate Guam
law, and breach the SWCS Agreement, which granted
5
The United States has included a copy of one page of the
petition in Exhibit 2 to this Memorandum. As the Court is
aware, the petition was signed by over 3,600 Guam residents.
JA-37
GRRP the option to design, construct, and operate a
new landfill.
CCCO - The Ordot Dump is a public health hazard,
has been operating in an unsafe and illegal manner,
and should be closed as soon as possible. CCCO
opposes any expansion of the Ordot Dump and the
acquisition of any private property in Ordot for the
purposes of operating a solid waste facility. Ordot has
been designated as a Superfund site and needs to be
cleaned up without any further pollution pressures
placed on it.
The Consent Decree is designed to remedy
GovGuam’s continuous violation of the federal Clean
Water Act.
For many years, GovGuam has
acknowledged that the Ordot Dump has been filled
beyond its capacity. For example, Guam’s former
Governor sent a letter to the Legislature in February
1998 about Bill No. 495 in which he noted that the
Ordot Dump was overflowing and that Guam had
considered closing Ordot beginning in 1982.
Similarly, the Guam Legislature has made specific
findings relating to the Ordot Dump:
(1) the Ordot Landfill is a threat to the health and
safety of the residents of Guam, and specifically for
the residents of Ordot-Chalan Pago, Yona and the
villages down river and downwind;. . . .
(4) the Ordot Landfill reached its capacity in the
1990’s, and the closure of the dump is necessary in
order to eliminate this existing serious
environmental hazard.
10 G.C.A. § 51101(a) (emphasis added).
Despite repeated acknowledgments by Guam’s
government of this serious problem and several
JA-38
legislative acts attempting to address it, the Ordot
Dump continues to discharge leachate into the Lonfit
River.
In addition, conditions at the Dump
periodically cause catastrophic fires, necessitating
the evacuation of nearby residents. This Consent
Decree finally serves to break the legislative logjam
that prevented GovGuam from addressing this
serious public health and environmental hazard.
Pursuant to Paragraph 9 a. of the Consent Decree,
Guam DPW is required to submit a list of at least
three potential landfill sites to EPA and Guam EPA
within 30 days after entry of the Decree. Contrary to
GRRP’s assumption, the Decree does not mandate
that Guam DPW include an expansion of Ordot as one
of its choices on that list. Paragraph 7 a. of the Decree
serves only to clarify that Guam DPW may consider
the option of constructing and operating new cells at
a location adjacent to Ordot Dump when it evaluates
potential landfill sites for the new Municipal Solid
Waste Landfill (“MSWLF”).
Thus, the decision
whether to include an Ordot option on its list of
potential sites rests with Guam DPW under the
Decree.
If Guam DPW does choose to include an Ordot
option on its list, the Consent Decree requires DPW
to complete an Environmental Impact Statement
(“EIS”) that includes a detailed analysis and
comparison of the landfill sites on the list. ¶ 9 a. The
EIS process will allow for public participation so that
citizens can express their concerns about each site. In
that EIS process, Guam DPW will be able to evaluate
the advantages and disadvantages of each site. After
completing the EIS, Guam DPW will identify its
preferred alternative for a new landfill site. ¶ 9 a.
JA-39
At this point, it is premature to conclude that an
Ordot option is either feasible or infeasible for the
following reasons. First, Guam DPW has not yet
identified Ordot expansion as an option under
Paragraph 9 a. Second, even if an Ordot option is
identified, it may not be DPW’s preferred alternative
after the EIS process is completed. Third, EPA has
the prerogative to dispute DPW’s preferred
alternative pursuant to Paragraph 9 b. If EPA and
GovGuam cannot agree on a location for the new
landfill site, the matter will be submitted to the Court
for resolution, ¶ 9 b. Fourth, Paragraph 8 of the
Consent Decree requires GovGuam to design and
implement a closure plan for the existing Ordot Dump
that will eliminate the source of the discharge of
leachate to the Lonfit River. This approach to the
problem is consistent with EPA’s conclusion in its
1988 Record of Decision when EPA decided to take no
further action under CERCLA to address the Ordot
Dump. Finally, if any new MSWLF is slated for the
vicinity of Ordot, it will be sited, constructed, and
operated in accordance with all applicable federal and
local laws pursuant to the requirements of the
Consent Decree. Therefore, a new MSWLF should not
complicate existing environmental problems in the
area.
The United States also believes that any perceived
conflict with Guam law can be managed by Guam
DPW. For example, if Guam DPW identifies an Ordot
option as the preferred alternative for a new landfill
at the conclusion of the EIS process, DPW can request
the Guam Legislature to authorize its decision in new
legislation.
Similarly, it is premature to state there will be any
conflict with the SWCS Agreement. It is conceivable
JA-40
that the legal challenge to the validity of the SWCS
Agreement will be decided by the Guam Supreme
Court by the time Guam DPW needs to state its
preferred alternative for a landfill site for the new
MSWLF. The Court may determine that the SWCS
Agreement is invalid. In addition, GovGuam may
interpret the SWCS Agreement differently than
GRRP. Even if the SWCS Agreement is determined
to be valid, GRRP’s interpretation of its substantive
provisions is not necessarily controlling.
Comment 2: Construction Contract
GRRP: The Consent Decree’s provision requiring
GovGuam to award a construction contract for the
new MSWLF violates the SWCS Agreement because
GovGuam has already exercised an option under the
Agreement and designated GRRP to construct a new
landfill.
The Consent Decree does require GovGuam to
construct a new MSWLF. However, as long as
GovGuam follows the requirements of the Consent
Decree in making its siting decision regarding a new
MSWLF, GovGuam could decide to construct the new
MSWLF at the location chosen by GRRP. Moreover,
as stated previously, the validity of the SWCS
Agreement is currently before the Guam Supreme
Court and will likely be decided long before DPW is
required to award a construction contract under the
Consent Decree, which occurs 32 months after entry.
In addition, GovGuam may interpret the SWCS
Agreement differently than GRRP. Finally, if the
Guam courts determine that the SWCS Agreement is
valid and if GRRP were to prevail in its interpretation
of the Agreement, GRRP would have a remedy at law.
JA-41
That would not affect the validity of this Consent
Decree.
Comment 3: Location of Potential Landfill Sites
GRRP: The Consent Decree’s requirement that Guam
DPW identify three potential landfill sites allows
GovGuam to identify potential sites outside of those
designated by the Guam Legislature, which chose
Guatali and Malaa. Consideration of sites other than
Guatali and Malaa would violate Guam law and the
SWCS Agreement.
CCCO: Allowing GovGuam to locate a new solid waste
management facility adjacent to the existing Ordot
Dump conflicts with previous Guam legislation
prohibiting such an option. Citizens will be required
to bring litigation against GovGuam for ignoring
Guam law.
The Decree establishes an EIS procedure in
Paragraph 9 that requires GovGuam to complete a
detailed analysis and comparison of at least three
alternative sites for a new MSWLF. An analysis of
alternative sites in an EIS process will not necessarily
result in any conflict with the Guam Legislature’s
preferred alternatives. First, Guam DPW could
conclude, after completing the EIS, that Guatali or
Malaa is its preferred alternative. Alternatively,
Guam DPW could decide, after considering its options
in the EIS process, that a new site is preferable and
ask the Guam Legislature to ratify its decision in new
legislation.
Regarding the perceived conflict with the SWCS
Agreement, the United States has addressed that
concern in its response to comment 2.
JA-42
Comment 4: Methods of Solid Waste Disposal
GRRP: The Consent Decree contemplates that the
primary method of municipal solid waste disposal on
Guam shall be a landfill. The SWCS Agreement
contemplates that incineration shall be the primary
method. GRRP objects to the Consent Decree to the
extent that it impacts the SWCS Agreement by
calling for an alternate primary method of solid waste
disposal other than incineration.
CCCO: The Consent Decree assumes that
construction of landfill constitutes compliance with
the Court’s Order and eliminates any alternative
method of solid waste management such as
incineration. GovGuam has previously adopted an
incinerator-based approach to the problem.
GovGuam is attempting to use this Consent Decree to
abandon previously approved methods of solid waste
management. GovGuam does not have the authority
to negotiate the compliance provisions of this Decree
because it conflicts with previous governmental acts
by GovGuam.
Contrary to assertions by GRRP and CCCO, the
Consent Decree does not establish any primary
method of municipal solid waste disposal for Guam.
As long as it complies with applicable federal and
local laws, GovGuam is free to decide whether it will
rely on incineration as the primary method of
municipal solid waste disposal on Guam.
The
Consent Decree does require that GovGuam close the
Ordot Dump and design, construct, and operate a new
MSWLF. While incineration may be used to reduce
the total volume of municipal solid waste, it cannot
eliminate solid waste entirely. Therefore, even if
GovGuam were to decide to construct a waste-to-
JA-43
energy facility, the Territory of Guam would still
require a new MSWLF for disposal of ash
Comment 5: Financial Plan
CCCO: The Consent Decree is unenforceable because
GovGuam does not have the money to comply with its
provisions. Paragraph 10 of the Consent Decree
requires only that GovGuam exercise its best efforts
to fund the compliance terms and does not guarantee
that the terms of the Decree will ever be brought to
fruit. It is ironic that GovGuam is proposing to pay
stipulated penalties if it has not secured funding for
compliance with the Decree.
Within 120 days after entry of the Consent Decree,
Paragraph 10 requires GovGuam to submit to EPA a
financial plan for funding the closure of Ordot Dump
and the opening of a new sanitary landfill. The
financial plan will include both the sources of funds
and a schedule to secure funds for both capital costs
and operating expenses.
The parties acknowledge in Paragraph 10 that
GovGuam does not currently have the total amount of
funding necessary to complete these projects.
However, the projects will take more than three years
to complete and can be funded over time. Moreover,
the Guam Legislature has already provided some
funding through the Solid Waste Operations Fund,
which is specifically designed to finance the closure of
Ordot and the opening of a new sanitary landfill, and
the U.S. Department of the Interior has provided
some additional funding. In addition, collection of
tipping fees is an expected source of revenue for these
projects. GovGuam presently has sufficient funds to
begin the planning process required by the Consent
Decree.
To the extent that the Solid Waste
JA-44
Operations Fund is insufficient to complete the
projects, GovGuam committed to use its best efforts
to secure the necessary funding for these projects.
The stipulated penalties provisions in Paragraph
12 of the Consent Decree provide the United States
with an important enforcement tool to ensure that
GovGuam follows through on its commitments. The
threat of such fines will also serve to motivate
GovGuam to focus on compliance with the terms of
the Decree, which should prevent any undue delays in
the compliance schedule.
In sum, the parties negotiated the terms of the
compliance schedule embodied in the Consent Decree
over a period of many months.
GovGuam is
committed now to a reasonable and enforceable
compliance schedule to address and resolve the longstanding issue of municipal solid waste disposal for
Guam.
VI. CONCLUSION
The Consent Decree now before the Court was
reached after the parties’ careful and informed
assessment of the merits of the case, the costs, risks,
and delays that litigation would entail, and the value
of an early settlement, including the significant
environmental benefits that will accrue from
GovGuam commencing many of the comprehensive
injunctive measures contained in the proposed Decree
immediately. As explained above, the proposed
settlement is fair, reasonable, and consistent with the
purpose of the Clean Water Act. Because the public
comments submitted on the proposed Decree do not
provide a basis for the United States to withhold its
consent to the settlement, the United States requests
JA-45
this Court to approve and enter the proposed Consent
Decree.
Respectfully submitted,
LEONARDO M. RAPADAS
United States Attorney
Districts of Guam and NMI
Dated: 2/2/04
s/ Mikel W. Schwab
MIKEL SCHWAB
Assistant U.S. Attorney
OF COUNSEL:
JULIA JACKSON
Assistant Regional Counsel
U.S. Environmental Protection Agency
75 Hawthorne Street
San Francisco, California 94105
JA-46
Citation
68 FR 70533-01
2003 WL
22963978 (F.R.)
(Cite as: 68 FR
70533
Found
Document
Rank
2 of 2
Database
FR
NOTICES
DEPARTMENT OF JUSTICE
Notice of Lodging of Consent Decree Under the
Clean Water Act
Thursday, December 18, 2003
*70533 Under 28 CFR 50.7, notice is hereby given
that on December 3, 2003, a proposed consent decree
in United States v. Government of Guam, Civil Case
No. 02-00022, was lodged with the United States
District Court for the District of Guam.
In this action, the United States sought injunctive
relief and civil penalties under section 309 of the
Clean Water Act (“CWA”) against the Government of
Guam for: (1) Discharges of leachate from the Ordot
Landfill without a permit in violation of CWA section
301; and (2) violation of the U.S. Environmental
Protection Agency’s administrative order to cease the
discharges.
The consent decree requires the
GOVERNMENT
EXHIBIT
1
JA-47
Government of Guam to: (1) Close the Ordot Landfill,
conduct environmental studies, and develop, design,
construct, and operate a new sanitary landfill; (2) as
a supplemental environmental project, develop and
implement a comprehensive waste diversion strategy
for household hazardous waste on Guam; and (3) pay
a civil penalty of $200,000.
The Department of Justice will receive for a period
of thirty (30) days from the date of this publication
comments relating to the consent decree. Comments
should be addressed to the Assistant Attorney
General, Environment and Natural Resources
Division, P.O. Box 7611, U.S. Department of Justice,
Washington, DC 20044-7611, and should refer to
United States v. Government of Guam, D.J. Ref. #905-l-1-06658.
The consent decree may be examined at the Office
of the United States Attorney, Suite 500, Sirena
Plaza, 108 Hernan Cortez, Hagatna, Guam, and at
U.S. EPA Region 9, Office of Regional Counsel, 75
Hawthrone Street, San Francisco, California. During
the public comment period, the consent decree may
also be examined on the following Department of
Justice
Web
site:
http://www.usdoj.gov/enrd/
open.html. A copy of the consent decree may also be
obtained by mail from the Consent Decree Library,
P.O. Box 7611, U.S. Department of Justice,
Washington, DC 20044-7611 or by faxing or e-mailing
a
request
to
Tonia
Fleetwood
(tonia.fleetwood@usdoj.gov), fax no. (202) 514-0097,
phone confirmation number (202) 514-1547. In
requesting a copy from the Consent Decree Library,
please enclose a check in the amount $20.00 (25 cents
per page reproduction cost) payable to the U.S.
Treasury.
JA-48
Ellen M. Mahan,
Assistant Chief, Environmental Enforcement Section,
Environment and Natural Resources Division.
JA-49
CALVO AND CLARK, LLP
[letterhead omitted]
January 15, 2004
Assistant Attorney General
Environmental and Natural Resources Division
Post Office Box 7611
U.S. Department of Justice
Washington, DC 20044-7611
RE:
United States v. Government of Guam, D.J.
Ref. 90-5-1-1-06658
Dear Assistant Attorney General:
This office is legal counsel for Guam Resource
Recovery Partners (“GRRP”). · On behalf of GRRP, we
wish to submit the following comments to the Consent
Decree in the action entitled United States of America
v. Government of Guam, U.S. District Court of Guam
Civil Case No. 02-00022 (the “Ordot Dump Action”'),
for the U.S. Government’s consideration.
In 1996, the Government of Guam and GRRP
executed the Solid Waste Construction and Services
Agreement (the “Agreement”). The Agreement has as
its general purpose the generation of electricity from
waste using a privately financed, constructed and
operated facility and the purchase of the power
produced by the facility by the Government of Guam.
GOVERNMENT
EXHIBIT
2
JA-50
In 2000, a local senator filed a complaint seeking
declaratory and injunctive relief against the
Government of Guam in order to have the Agreement
declared invalid and to enjoin the Government from
proceeding with the Agreement. See Pangelinan v.
Gutierrez, Superior Court of Guam Special
Proceedings Case No. 212-00. GRRP intervened in
that action.
In 2001, the Superior Court of Guam issued a
Decision and Order declaring the Agreement valid
and finding unconstitutional and inorganic local laws
that impaired the Agreement. The judgment of the
Superior Court was appealed and the matter is still
pending before the Guam Supreme Court after the
issuance of an opinion and the granting of a motion to
reconsider that opinion. Since the matter is still
pending before the Guam Supreme Court the
applicable judicial enactment is the decision of the
Superior Court of Guam upholding the validity of the
Agreement.
GRRP offers the following comments:
1. Paragraph 7.a. provides that “the new
Municipal Solid Waste Landfill or “MSWLF” shall
include the option of constructing and operating new
cells at a location adjacent to the Ordot Dump
location.”
Comment - Expansion of the Ordot Dump site will
only lead to a complication of the existing
environmental degradation downstream and adjacent
to the dump. For instance, according to the U.S. EPA,
leachate of questionable composition has been
observed openly entering the Lonfit River from the
dump. The Water and Energy Research Institute
(University of Guam) characterizes this leachate as
JA-51
containing certain toxic and harmful substances,
which are probably now in situ in the river sediment.
Until the source of these substances is identified and
specifically isolated and monitored, the whole area
can be considered as an environmental hazard and
area source for these pollutants. If the MSWLF is
located adjacent to or close to the dump, isolation of
any additional source will be difficult to accomplish.
The Ordot site is listed as a Superfund site, so any
work at Ordot should be isolated to the closing of the
dump and remediation of the existing violations.
Additionally, constructing the MSWLF at a
location adjacent to the Ordot Dump violates existing
Guam Law. Guam Public Laws 23-95 (1996) and 2406 (1997) and the Integrated Solid Waste
Management Plan for the Island of Guam provide
that the primary site for the MSWLF shall be Guatali
and the secondary site shall be Malaa. Expansion of
the Ordot Dump, as contemplated by the Consent
Decree, contravenes the express provisions of Guam
Public Law 23-95 and 24-06. It is highly likely that if
the Ordot Dump is expanded. residents of OrdotChalan Pago will protest and bring suit to enforce the
provisions of Public Laws 23-95 and 24-06 and
prohibit such expansion.
Finally, expansion of the Ordot Dump is a breach
of the Agreement.
The Agreement grants the
Government of Guam the option to cause GRRP to
design, construct, and operate a new landfill. The
Government of Guam exercised its option in February
1997. In anticipation of satisfying its obligations
under the option, GRRP identified a landfill site and
is in fact leasing a site from the Chamorro Land Trust
Commission for the development and operation of the
new landfill. The leased site is Parcel B of the area
JA-52
commonly known as Guatali and this site meets all
U.S. EPA and Guam EPA requirements for landfill
siting, construction and operation.
Should the
Government of Guam proceed with expansion of the
Ordot Dump, GRRP will seek an injunction from the
court and enforcement of the option exercised by the
Government of Guam.
2. Paragraph 9.5 provides: “Within 975 days
(approximately 32 months), DPW shall award a
construction contract for the new MSWLF in
accordance with applicable procurement rules and
policies of the Government of Guam and provide a
notice to proceed to the selected contractor and
submit evidence of such award and notice to U.S.
EPA.”
Comment - Pursuant to the option exercised by the
Government of Guam under section 5.09 of the
Agreement, the Government of Guam has designated
GRRP as the entity responsible for the design,
construction and operation of a new landfill. Putting
out the design, construction and operation of the
MSWLF for bid is a direct violation of the option
exercised by the Government of Guam under the
Agreement. GRRP intends on fully protecting its
rights under the option and the Agreement and will
institute legal action to ensure that its rights are
adequately protected.
3. Paragraph 9.a provides that “Within 30 days,
DPW shall submit a list of at least three potential
landfill sites to U.S. EPA and GEPA.”
Comment - This broad language allows the
Government of Guam to identify potential landfill
sites outside of those mandated by the Guam
Legislature. The sites to be considered under the
JA-53
Consent Decree should be specifically identified as
either Parcel A of Guatali (designated.by Guam P.L.
23-95 and 24-06), Parcel B of Guatali (designated by
GRRP under the Agreement) or Malaa (designated by
Guam P.L 23-95 and 24-06). Consideration of sites
other than Guatali and Malaa would be a violation of
local law and a breach of the Agreement.
4. As a general matter the Consent Decree
contemplates that the primary method of municipal
solid waste disposal on Guam shall be landfilling.
This is in direct contravention of the Agreement,
which contemplates that incineration should be the
primary method of solid waste disposal on Guam.
Accordingly, GRRP objects to the Consent Decree to
the extent that it impacts the Agreement by calling
for an alternate primary method of solid waste
disposal other than incineration.
In conclusion, the Agreement is a valid contract
between the Government of Guam and GRRP. It
appears that the Consent Decree fails to take into
consideration the Government of Guam’s obligations
under the Agreement and the impact the .Agreement
might have on the Government of Guam’s ability to
comply with the consent Decree. Inversely, the
Consent Decree also fails to consider the impact the
Government of Guam’s compliance with the Consent
Decree might have on the Agreement. To the extent
that the Government of Guam’s compliance with the
Consent Decree works as a material breach of the
Agreement, the Government of Guam risks being in
default under the Agreement thereby subjecting itself
to damages.
JA-54
Sincerely,
CALVO AND CLARK, LLP
/s/ Janalynn M. Cruz
Janalynn M. Cruz
JA-55
January 15, 2004
Assistant Attorney General
Environmental and Natural Resources Division
Post Office Box 7611
U.S. Department of Justice
Washington, DC 20044-7611
RE:
United States v. Government of Guam, D.J.
Ref. 90-5-1-1-06658
To Whom It May Concern:
As concerned citizens of Guam we are transmitting
the enclosed comments on the proposed consent
decree in the issue of the United States of America vs.
the Government of Guam, Civil Case No. 02-00022.
The enclosure outlines our concerns that the decree
and appurtenant conditions do not take into account
the fact that the Government of Guam has previously
adopted methods of solid waste management, and has
previously excluded the existing Ordot Dump location
from consideration for expansion of trash disposal
facilities on Guam.
We are enclosing for your reference copies of
signature sheets previously presented at the District
GOVERNMENT
EXHIBIT
3
JA-56
Court of Guam in 2003, voicing citizens’ opinions that
the Ordot Dump should be closed and no adjacent or
nearby expansion considered.
Ordot has been designated a Superfund site. It needs
to be closed and cleaned up with no further pollution
pressures placed on it.
Sincerely,
s/ [illegible]
Concerned Citizens to Close Ordot
Attachments:
Comments to Consent Decree
Signature Sheets
JA-57
COMMENTS ON THE PROPOSED CONSENT
DECREE IN CIVIL CASE NO. 02-00022
UNITED STATES OF AMERICA V.
GOVERNMENT OF GUAM
THE UNDERSIGNED arc citizens and residents of
the Territory of Guam, and are persons directly
affected by the current and future waste management
policies of the Government of Guam.
THE
UNDERSlGNED submit their comments on the
proposed Consent Decree in the above identified suit
as follows:
I. SUMMARY OF COMMENTS
The proposed Consent Decree has assumptions
built into it that actually constitute a fraud on the
United States District Court that will be asked to
enter this Consent Decree.
By assuming that a landfill constitutes compliance
with a U.S. court order, this proposed Consent Decree
eliminates any alternative methods of solid waste
management. In fact, the Government of Guam has
previously explored and adopted methods of solid
waste management different from simple landfill
solutions and has entered into contracts, including
legislative approvals, for an incinerator based
approach to the problem. It appears that GovGuam
is attempting to use this proposed Consent Decree to
abandon previous approved methods of solid waste
management.
The proposed Consent Decree explicitly allows
consideration of the existing Ordot location for a new
landfill. Again, previous legislation by the Guam
legislature has excluded the Ordot area from
consideration for new solid waste management
JA-58
facilities. GovGuam is attempting to use the Consent
Decree process and the power of the Court to avoid
binding legislation that limits GovGuam’s powers in
this area.
The proposed Consent Decree is essentially
unenforceable. GovGuam does not have the money to
comply with the proposed Consent Decree (see
Consent Decree, Par. 10). The proposed Consent
Decree only requires “best efforts” on the part of
GovGuam to comply with the provisions of this
proposed Consent Decree. This is a subjective and
essentially unenforceable standard of compliance. It
is foreseeable that this “best efforts” standard will
require re-litigation of each step of compliance with
the Consent Decree, with inevitable delays.
II. PRE-EXISTING OBLIGATIONS OF
GOVGUAM
The proposed Consent Decree, if entered by the
Court, will implicitly adopt two underlying factual
assumptions. First, the proposed Decree assumes
that GovGuam has no previous governmental
restrictions and obligations that limit or define its
choices in solid waste management. Second, the
proposed Decree assumes in advance that a simple
landfill solution is the proper solution to Guam’s solid
waste management problems.
GovGuam does have prior governmental
commitments and obligations concerning solid waste
management that are directly inconsistent with the
proposed compliance provisions of the proposed
Consent Decree. There has been previous legislation,
contracts, financing arrangements. There have been
prior feasibility studies, site studies, and decisions
made from those prior studies. There has been
JA-59
previous legislation involving these prior obligations
and restrictions.
GovGuam does not have the
authority to negotiate the compliance provisions of
the proposed Consent Decree. They conflict with
previous governmental acts by GovGuam,
The direct interest of the undersigned persons is
that these prior legislative and contractual
obligations and restrictions on GovGuam direct
placement of new solid waste management facilities
at sites other than the Ordot vicinity.
If the proposed Consent Decree is entered, it would
constitute the blessings of the United States District
Court on GovGuam’s disregard of its prior
governmental actions and obligations pertaining to
future solid waste management on Guam.
III. LOCATION OF NEW LANDFILL IN ORDOT
The proposed Consent Decree, Paragraph 7(a),
would allow GovGuam to locate new solid waste
management facilities adjacent to the existing Ordot
Dump. However, previous Guam legislation prohibits
such an option. By placing the signature of the
United States District Judge on this Consent Decree,
the Court would be authorizing GovGuam’s violation
of its own governmental acts and limitations.
The citizens who live in the vicinity of the existing
Ordot Dump have deferred private litigation pending
the negotiation of this Consent Decree. Extensive and
expensive litigation under applicable provisions of the
United States Constitution and the Guam Organic
Act could be avoided if GovGuam would recognize its
pre-existing obligations and limiting legislation in
proposing compliance terms for the Consent Decree.
If, on the other hand, GovGuam persists in ignoring
its prior governmental acts, then the same Court that
JA-60
is being asked to enter this Consent Decree will soon
be asked to apply constitutional standards to the
states actions of GovGuam.
III. UNENFORCEABLE FUNDING
PROVISIONS
Paragraph 10 of the proposed Consent Decree
acknowledges that GovGuam does not have the funds
to pay for the compliance provisions of the Decree.
GovGuam is then obligated to exercise “best efforts”
to fund the compliance terms of the Decree.
“Best efforts” is a fluid and subjective measure of
GovGuam’s compliance efforts.
This offers the
citizens of Guam no guarantee of any kind that, in
fact, the terms of the Decree will ever be brought to
fruit. It does, however, guarantee multiple hearings
before the Court over whether or not GovGuam is
complying with this amorphous standard of “best
efforts.” It is virtually guaranteed that there will be
delay upon delay in an already lengthy compliance
project while the Court must determine whether
GovGuam is doing what it must do to fund this solid
waste management project.
The irony of this provision of the proposed Consent
Decree is the proposed penalties for non-compliance.
Paragraph 12, etc., of the Decree provides for
economic civil penalties for non-compliance.
GovGuam is proposing to pay economic penalties in
response to the accusation that it has not secured
funding for compliance with the Decree. This does
appear to the average person to make a mockery of
the funding provisions of the proposed Consent
Decree.
JA-61
PUBLIC PETITION
Attached is a public petition showing the support
for solving the Ordot Dump problem in a rational and
effective way. The undersigned ask that the spirit
and letter of this petition be considered in this
comment process.
CONCLUSION
The undersigned feel very strongly that this
proposed Consent Decree only papers over a longstanding problem on Guam. Foreseeably, it resolves
nothing. Foreseeably, the terms of this Consent
Decree would only offer the authority of the United
States District Court to support extensive, and
ultimately fruitless, delay.
COMMENTS AS SIGNED BELOW
[Signature list omitted]
Committee for the
Closure of the Ordot Dump
We, the people, are opposed to any expansion of
the Ordot Dump, or the acquisition of private
property in Ordot for the purposes of operating a.
Solid Waste Facility.
The Ordot Dump is a public health hazard, and
has been operating in an unsafe and illegal manner,
and should be closed as soon as possible.
[Signature list omitted]
JA-62
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GOVERNMENT OF
GUAM,
Plaintiff,
v.
UNITED STATES OF
AMERICA,
Defendant.
§
§
§
§
§
§
§
§
§
Civ. Action No.:
3:17-CV-00371
Filed May 19, 2017
AMENDED COMPLAINT
Comes Now, the Government of Guam, as
authorized and approved by Governor Eddie Baza
Calvo and brought by the Office of Attorney General
Elizabeth Barrett-Anderson and outside counsel, and
files its Amended Complaint and complains as
follows:
INTRODUCTION
1. This is a civil action brought by the
Government of Guam pursuant to the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601-9675, as
amended (“CERCLA”), against the United States of
America, including but not limited to the Department
of Navy, for costs of removal and remedial action
arising from or related to the investigation,
remediation and closure of the Ordot Landfill and
relocation of the community facility and business.
JA-63
JURISDICTION
2. Jurisdiction is proper in this Court under 28
U.S.C. § 1331 (civil action arising under the laws of
the United States) and 28 U.S.C. § 2201 (declaratory
relief). Jurisdiction is also proper in this Court under
42 U.S.C. §§ 9613(b) and 9613(g)(2).
VENUE
3. Venue is proper in this district under 28
U.S.C. §§ 1391(b)(1), 1391(c)(2) and 1391(e)(1)(A) and
42 U.S.C. § 9613(b).
PARTIES
4. Plaintiff, Government of Guam (“Guam”), is a
public entity existing under the Guam Organic Act of
1950 and has the power to sue under 48 U.S.C.
§ 1421a.
5. Defendant United States of America includes,
inter alia, the Departments of Interior, Defense,
Army, Navy, and Air Force. The Department of Navy
(“Navy”)1 was previously identified by the United
States Environmental Protection Agency (“USEPA”)
as a potentially responsible party at the Ordot
Landfill.2 Defendant Navy is an agency within the
Executive Branch of the federal government of the
United States of America. Defendant Navy is a
resident of Connecticut with Naval Submarine Base
1
Defendant Navy is the successor to the former Department
of the Navy, a cabinet-level Executive Branch Department until
it was merged into the Department of Defense as a military
department pursuant to the National Security Act of 1947, as
amended in 1949.
2
U.S. EPA Final Record of Decision, Ordot Landfill
Superfund Site, September 1988.
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New London located at Groton, Connecticut 06349.
Defendant Navy may be served via certified mail
return receipt requested at the following three
addresses:
United States of America
Department of the Navy
General Litigation Division
Authorized Agent for Service of Legal
Documents
875 N Randolph Street
Arlington, VA 22217
United States of America
Department of the Navy
General Litigation Division
Authorized Agent for Service of Legal
Documents
720 Kennon Street, SE
Washington, DC 20374
United States of America
Department of the Navy
General Litigation Division
Authorized Agent for Service of Legal
Documents
1322 Patterson Ave., Suite 3000
Washington Navy Yard, DC 20374-5066
The United States Attorney for the District of
Connecticut may be served via certified mail return
receipt requested at:
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United States Department of Justice
United State Attorney
District of Connecticut
Civil Process Clerk
Connecticut Financial Center
157 Church Street, Floor 25
New Haven, CT 06510
The United States Department of Justice may be
served via certified mail return receipt requested at:
United Stated Department of Justice
United States Attorney General
950 Pennsylvania Avenue, NW
Washington, DC 20530
FACTUAL BACKGROUND
6. On June 21, 1898, the United States captured
the island of Guam. By the Treaty of Paris, Spain
ceded Guam to the United States, effective April 11,
1899. Defendant Navy unilaterally governed and
operated the island as the “USS Guam,” with the
Naval Commandant acting as the governor of Guam.
Plaintiff Guam was established by the United States
Congress through enactment of the Guam Organic
Act in 1950. The Guam Organic Act transferred
federal jurisdiction over Guam from Defendant Navy
to the Department of the Interior. However, Guam
continued to be under the control of the federal
government
and
Defendant
Navy
as
an
instrumentality and having its governor appointed by
the President of the United States. Indeed, due to the
extensive military presence and operations
throughout Guam, a federal military security
clearance was required for anyone to visit Guam until
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the 1960s. Guam’s first popularly elected governor
took office in 1971.
7. Defendant Navy built and began using the
Ordot Landfill before World War II for the disposal of
municipal and military waste. The Navy operated the
landfill until the Japanese military invaded and
occupied Guam in December 1941. Japan used the
landfill throughout its occupation until United States
military forces recaptured Guam in July 1944.
8. In November 1945, Congress passed “The
Guam Meritorious Claims Act,” authorizing the
Secretary of the Navy to adjudicate and settle Guam’s
reparation claims. On January 8, 1947, the Secretary
of the Navy appointed a three-member committee to
evaluate Defendant Navy’s handling of its
reconstruction and rehabilitation responsibilities on
Guam. The committee found Defendant Navy’s
settlement and payment system was ineffective and
recommended significant changes to the reparations
process.
9. On September 8, 1951, the United States
government signed the Treaty of San Francisco with
Japan, waiving all of Guam’s reparation claims,
including those for property damage across the island.
The United States therefore is responsible for any
removal and remediation costs related to the Ordot
Landfill attributable to the Japanese invasion and
occupation of Guam.
10. Upon the recapture of the island by the
United States in July 1944, Defendant Navy resumed
operations at the Ordot Landfill and operated and
controlled the site thereafter. Despite the Guam
Organic Act, Guam remained an instrumentality of
the federal government from 1950 to 1970. During
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this time period, the Ordot Landfill was operated by
the government of Guam under a governor appointed
by the President of the United States and under the
oversight of the United States military including
Defendant Navy.
11. The United States arranged for, transported
and disposed of municipal and military waste at the
Ordot Landfill from the time of the dump’s opening
until the creation of Navy’s own disposal area in the
1970s.3 The United States used the Ordot Landfill
during significant military campaigns, including but
not limited to the Korean War (1949-1953) and the
Vietnam Conflict (1965-1973). Significant quantities
of
munitions
and
chemicals
(e.g.,
Dichlorodiphenyltrichloroethane – “DDT” – and
Agent Orange) were stored on Guam for extensive use
during these campaigns, both on foreign soils as well
as on Guam itself. Upon information and belief,
wastes and unused excess stores of these munitions
and chemicals were disposed of on Guam including
but not limited to at the Ordot Landfill. Until the
1970s, at the earliest, the Ordot Landfill was the only
sited and operational dump on Guam. It continued to
be the only public sited dump on the island until its
closure in 2011.
12. During its years of operation, the Ordot
Landfill was unlined on its bottom and uncapped at
its top. The landfill absorbed rain and surface water
3
At some point after its creation in the late 1940s, the United
States Air Force began operating on Guam and opened its own
base. Upon information and belief, the Air Force arranged for,
transported and disposed of municipal and military waste at the
Ordot Landfill from the time of the base’s opening until the
creation of Air Force’s own disposal area in the 1970s.
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and released it after it percolated through the landfill
and picked up contaminants. These contaminants
discharged into the nearby Lonfit River. The Lonfit
River flows into the Pago River which discharges into
the Pacific Ocean at Pago Bay.
13. The Ordot Landfill has a long history of
operational and environmental problems dating back
to before World War II. USEPA added the Ordot
Landfill to the National Priorities List (“NPL”) in
1983. The NPL is USEPA’s list of sites given priority
for the expenditure of funds to respond to the release
or threatened release of hazardous substances. In
1988, the USEPA issued a Record of Decision which
noted that Defendant Navy was a potentially
responsible party (“PRP”) for the environmental
contamination at and emanating from the Ordot
Landfill.
Despite such designation, USEPA
recommended no action at the Ordot Landfill.
14. In 2002, the United States sued Guam solely
under the Clean Water Act, asserting that leachate
was discharging from the Ordot Landfill into the
Lonfit River and two of its tributaries. In 2004, the
United States District Court for the Territory of
Guam approved a consent decree under the Clean
Water Act requiring Guam to close the Ordot Landfill
and stop the discharge of leachate.
In 2011,
operations at the Ordot Landfill ceased. Remediation
and closure work at the Ordot Landfill, which
included capping the landfill, installing storm water
management ponds, leachate storage tanks and a
sewer line, began in December 2013 and is still
ongoing.
15. Guam expects costs of remediation at and
related to the Ordot Landfill to exceed approximately
$160,000,000.
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CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
RECOVERY OF REMOVAL AND REMEDIATION
COSTS UNDER SECTION 107(A) OF CERCLA
16. Guam incorporates the allegations in all
preceding paragraphs.
17. The Ordot Landfill is located on Guam. The
Ordot Landfill is a facility within the meaning of
Section 101(9) of CERCLA, 42 U.S.C. § 9601(9).
18. The United States is a person within the
meaning of Section 101(21) of CERCLA, 42 U.S.C.
§ 9601(21). The United States, including but not
limited to Defendant Navy, is the former owner and
operator of the Ordot Landfill, and it also arranged
for the disposal or treatment of hazardous substances
at the Ordot Landfill and transported hazardous
substances for disposal at the Ordot Landfill.
19. During the time the United States owned or
operated the Ordot Landfill, and possibly afterwards,
the United States, including but not limited to
Defendant Navy, disposed of, and arranged for the
disposal of, various types of hazardous substances
and waste at the Ordot Landfill, including but not
limited to municipal waste, military, industrial and
commercial chemicals, PCB-contaminated oils from
electrical transformers and munitions.
20. There have been releases, within the
meaning of Section 101(22) of CERCLA, 42 U.S.C.
§ 9601(22), and threats of continuing releases, of
hazardous substances, within the meaning of Section
101(14) of CERCLA, 42 U.S.C. § 9601(14), into the
environment at or from the Ordot Landfill.
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21. Guam has incurred and will continue to incur
removal and remediation costs related to the releases
or threatened releases of hazardous substances at or
from the Ordot Landfill.
22. Guam’s removal and remediation costs
regarding the Site are not inconsistent with the
National Contingency Plan, 40 C.F.R. Part 300.
23. Under Section 107(a)(4)(A) of CERCLA, PRPs
are liable for all costs of removal and remedial action
incurred by the United States Government or a State
. . . not inconsistent with the national contingency
plan.” 42 U.S.C. § 9607(a)(4)(A). The terms United
States and State are defined specifically to include
Guam. 42 U.S.C. § 9601(27).
24. Under CERCLA, each department or agency
of the United States is subject to liability under
Section 107. 42 U.S.C. § 9620(a)(1). The United
States, including but not limited to Defendant Navy,
is liable under Section 107(a)(2) because it owned or
operated the Ordot Landfill when hazardous
substances were disposed of there. The United
States, including but not limited to Defendant Navy,
also is liable because it arranged for the disposal of
hazardous substances at the Ordot Landfill and
transported hazardous substances for disposal at the
Ordot Landfill.
25. Pursuant to Section 107(a) of CERCLA, 42
U.S.C. § 9607(a), the United States, including but not
limited to Defendant Navy, is liable to Guam for
removal and remediation costs incurred by Guam
related to the Ordot Landfill, plus interest, in an
amount to be proven at trial.
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SECOND CAUSE OF ACTION
DECLARATORY JUDGMENT OF LIABILITY FOR
FUTURE RESPONSE COSTS PURSUANT TO
SECTION 113(g)(2) OF CERCLA
26. Guam incorporates the allegations in all
preceding paragraphs.
27. Guam will continue to incur removal and
remediation costs associated with the Ordot Landfill
that are recoverable from the United States,
including but not limited to Defendant Navy, under
CERCLA.
28. Section 113(g)(2) of CERCLA, 42 U.S.C.
§ 9613(g)(2), specifies that in any action for recovery
of costs under Section 107 of CERCLA, 42 U.S.C.
§ 9607, “the court shall enter a declaratory judgment
on liability for response costs . . . that will be binding
on any subsequent action or actions to recover further
response costs . . . .”
29. Guam is entitled to entry of a declaratory
judgment that the United States, including but not
limited to Defendant Navy, is liable for future
removal and remediation costs incurred by Guam in
connection with the Ordot Landfill to the extent that
such costs are incurred in a manner not inconsistent
with the National Contingency Plan.
THIRD CAUSE OF ACTION
CONTRIBUTION UNDER SECTION 113(f)
OF CERCLA
30. Guam incorporates the allegations in all
preceding paragraphs.
31. Pleading in the alternative, the United
States, including but not limited to Defendant Navy,
is liable to Guam for contribution pursuant to Section
113(f) of CERCLA, 42 U.S.C. § 9613(f), for all costs in
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excess of Plaintiff’s fair and equitable share of costs
that Plaintiff has incurred and may incur for removal
and/or remediation of the release and/or threatened
release of hazardous substances at or from the Ordot
Landfill.
PRAYER FOR RELIEF
WHEREFORE, Guam prays that this Court:
32. Enter a judgment in favor of Guam and
against Defendant United States, including but not
limited to Defendant Navy, pursuant to Section
107(a) of CERCLA, 42 U.S.C. § 9607(a), for removal
and remediation costs incurred by Guam at or related
to the Ordot Landfill, plus interest, in an amount to
be proven at trial.
33. Enter a declaratory judgment of liability in
favor of Guam and against Defendant United States,
including but not limited to Defendant Navy, for
future removal and remediation costs pursuant to
Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2)
at or related to the Ordot Landfill.
34. In the alternative, enter a judgment in favor
of Guam and against Defendant United States,
including but not limited to Defendant Navy, for all
costs in excess of Plaintiff’s fair and equitable share
of removal and remediation costs that Plaintiff has
incurred and may incur at or related to the Ordot
Landfill.
35. Enter a judgment awarding Guam its costs
incurred herein.
36. Enter a judgment for such other and further
relief as the Court deems just and equitable.
JA-73
Dated: May 19, 2017
Respectfully submitted,
/s/ Marisa A. Lorenzo__
Marisa A. Lorenzo
(ct30190)
KELLEY DRYE &
WARREN LLP
101 Park Avenue
Telephone:
(212) 808-7800
Facsimile:
(212) 808-7897
New York, NY 10178
mlorenzo@kelleydrye.
com
Elizabeth BarrettAnderson
ATTORNEY GENERAL OF
GUAM
Kenneth D. Orcutt
DEPUTY ATTORNEY
GENERAL
Civil Litigation Division
590 S. Marine Corps
Drive
Suite 706, ITC Building
Tamuning, Guam 96913
Telephone:
(671) 475-3324
John D.S. Gilmour
Facsimile: (671) 472-2493 William J. Jackson
korcutt@guamag.org
Mark Donatiello
KELLEY DRYE / JACKSON
GILMOUR DOBBS
515 Post Oak Blvd.,
Suite 900
Houston, TX 77027
Telephone:
(713) 355-5005
Facsimile:
(713) 355-5001
jgilmour@kelleydrye.
com
bjackson@kelleydrye.
com
mdonatiello@kelleydrye.
com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.