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Judge orders parties to work together on transition

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by Mindy Aguon

Guam - Cooperation. That's what District Court Chief Judge Frances Tydingco-Gatewood says is needed between the federal receiver, the Government of Guam and the members of the Guam Solid Waste Authority's board of directors.  Early this morning board members appeared before the court in hopes to get some clarity on their role and that of the receiver.  

For the last five years federal receiver Gershman, Brickner & Bratton has been tasked with ensuring GovGuam complies with the Ordot Dump consent decree.  But now that the dump is closed and the Layon Landfill is up and running, the court is looking for transition to begin.  Eventually the receiver's job will be done and solid waste operations on Guam will be left in the hands of the Guam Solid Waste Authority board.

Joe Duenas stated, "We're growing concerned that as we come to the finish line of receivership, the Government of Guam may not be ready if we continue at this pace." Duenas, the interim board chair, says members have been in place for the last 15 months and little to no progress has been made toward the goal of eventual takeover. "One of the primary things we wanted to get going initially was rules and regulations and hiring legal counsel just so we can start operating as a board. Fifteen months later we haven't gotten that. It's because we don't control procurement of legal counsel," he continued.

The receiver however was quick to rebut during Wednesday's hearing.  GBB's Chace Anderson told the court there is no effort to delay the transition but an effort to ensure projects are completed in a responsible way.  Anderson says the board only officially decided to procure legal counsel during its May meeting, noting, "Certainly whenever you have any kind of transition there's even good people have some uncomfortable situations but we'd love to work with them and we hope the Government of Guam gets on its feet with the solid waste and works forward."

Assistant attorney general Kathy Fokas informed the court that it was their office's recommendation that the board get their own legal counsel, saying the AG's Office's job is to help with litigation but there is a "slew of work" the board could be doing now. The receiver has indicated that transition of authority would take place at the end of 2015 or January 2016, but board members like Jon Denight believes it could be sooner. He said, "I think it's possible it could happen earlier but in order for us to get going we need to get some people in place some technical expertise and so forth."

But the board's requests have been met with resistance as the receiver doesn't believe any of that is necessary or financially responsible at this time. Even the judge questioned why they would need technical expertise and Denight and others explained that there may be issues with conflicts and it would be good to have a person on board throughout the transition who will remain in place after the receivership is over.

"But we don't want to take it over prematurely, but at the same time we don't want to wait around for two and a half years and then all of a sudden we have this big responsibility that we're not prepared for," he added.

The board has requested profit and loss reports for the new landfill but has yet to receive anything. While there have been some claims in briefs filed with the court that the landfill will not be financially viable once the turnover occurs in 2016, GBB doesn't agree. Anderson says the tipping fees have been laid out to the court, the governor and the PUC for the full cost of the landfill and it's up to the government to decide.  

Said Anderson, "You don't set up one of these things if you don't want it to be self-funded, and that's what going into the future as costs raise that and you have to build new cells you're going to have to look at finances at that time and the board will have to make decision on whether to go to the PUC to raise rates to cover what any gaps there may be but right now we're doing fine."

Tydingco-Gatewood ordered the receiver and the GSWA board to engage in discussions and try to reach common ground on the board's list of concerns. Prior to issuing the order, the judge spent much of today's hearing rehashing the history of the case and the Government of Guam's lack of compliance which led to the receivership. Tydingco-Gatewood stated, "It was with a heavy heart that I appointed a federal receiver." 

She went on to list of numerous accomplishments and improvements since the receiver was appointed.  The chief judge stressed that now is the most critical time and there is a need for the parties to work together cooperatively.  Tydingco-Gatewood said the AG will continue representing the receiver raising questions about who represents the Government of Guam.

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