Judge Explains Rationale Behind Greenlighting Guam Landfill Lawsuit

WASHINGTON (CN) - After ruling earlier this month that Guam could move forward with a lawsuit against the government to recoup $160 million to close and clean up a landfill, a federal judge explained her reasoning on Friday.

U.S. District Judge Ketanji Jackson issued an order advancing the lawsuit on Sept. 30, explaining in an Oct. 5 opinion that a 2004 consent decree left the question of liability open.

That decree resulted from a 2002 lawsuit the EPA filed against Guam, and required the island nation to close the dump, pay a civil penalty, halt the discharge of hazardous materials into the Lonfit River and build a new dump.

The government argued that the consent decree had resolved the liability issue, but Jackson rejected that claim, noting that the 2004 agreement merely brought Guam into compliance with the Clean Water Act.

"It is clear to this Court that, taken together, the terms of the 2004 Consent Decree do not support the conclusion that Guam and the EPA intended to resolve Guam’s liability for any response actions or costs relating to the Ordot Landfill," the 41-page opinion says.

Jackson determined that other types of settlements beyond the de minimis settlement Guam reached with the EPA as a result of the consent decree are available under the Comprehensive Environmental Response, Compensation, and Liability Act , but that such agreements need to be worked out as part of a settlement with the agency.

"The parties did not reach an agreement as to whether Guam was liable for the cost of the Ordot Landfill cleanup, much less determine the scope of its liability," the opinion says.

As a result, Guam's right to contribution has yet to be triggered,  "which means that it is not precluded from proceeding via a cost-recovery action."

The U.S. Navy created the Ordot Landfill when Guam was a U.S. territory, and used it to dump chemicals and munitions when the island served as the central base for the Navy in the South Pacific.

The U.S. turned Guam over to civilian authorities in 1950 and the dump was shuttered in 2011 after the Guamanian government reached an agreement with the Environmental Protection Agency to remediate it.

However Guam sued the United States  in 2017, arguing that the government is liable for at least part of the cleanup costs since it contributed substantially to the contamination through decades of operation.

Guam claims the U.S. dumped DDT and Agent Orange at the Ordot Landfill. Because the dump was designed prior to World War II, it lacked environmental protections, leading contaminants from the dump to seep into the Lonfit River, which carried them into the Pacific Ocean.

Guam, which used the dump for civilian purposes from 1950 until its closure in 2011, brought its claim against the government under the Comprehensive Environmental Response, Compensation, and Liability Act.

The United States had moved to dismiss the lawsuit as untimely, arguing that the three-year statute of limitations barred the claims.

The Department of Justice did not immediately respond to a request for comment on the ruling. Attorneys for Guam with Kelley Drye likewise did not immediately respond to an email seeking comment.

But Guam's attorney general, Elizabeth Barrett-Anderson, declared the ruling "a significant win for Guam."

"We are now able to continue our environmental law suit against the federal government to recover costs Guam incurred to close Ordot Dump," she said. "We have spent over $200 million to date, with millions more expected based on the Receiver’s recent report to the Court that Guam needs to borrow $23 million more .”

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