Ordot Dump lawsuit against Navy dismissed

Guam’s case seeks to hold the US Navy accountable for their share of dumping toxic waste at the Ordot Dump. (PNC file photo)

The government of Guam’s lawsuit against the U.S. Navy to recover the millions of dollars GovGuam has expended on the closure of the Ordot Dump has been dismissed.

The United States Court of Appeals for the District of Columbia Circuit, on Feb. 14, ruled that the statute of limitations on Guam’s lawsuit had already expired and thus Guam’s lawsuit cannot proceed.

It was in 2017 that then-Attorney General Elizabeth Barrett-Anderson filed the lawsuit against the Navy.

The lawsuit sought to declare the Navy responsible for the costs incurred by GovGuam in closing the Ordot dump. It also sought compensation for environmental-related costs since the Navy owned and operated the dump before and after World War II.

According to the lawsuit, Guam had been forced to borrow more than $160 million for the remediation of the Ordot Dump, and for the relocation and related construction of the island’s only public municipal landfill facility to be used by everyone on the island, including the U.S. military.

A defining feature of the lawsuit was the invoking of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA, which makes a “potential responsible party” liable for remedial action.

The CERCLA is designed to investigate and clean up sites contaminated with hazardous substances. Sites managed under this program are referred to as “Superfund” sites and there are 40,000 federal Superfund sites across the country.

This federal statute has been around for 40 years and it provides for a “Superfund” that would finance the mitigation of areas in the U.S. where there has been toxic dumping.

The Guam lawsuit argues that Ordot Dump was put on that Superfund list in the early 1980s for the cleanup of the Ordot Dump, but that GovGuam did not receive any funding.

The latest court decision, however, stated that when Guam entered into a consent decree in 2004 with the federal government on the Ordot Dump, this set off a three-year clock on Guam’s ability to seek compensation under CERCLA.

According to the decision, Guam should have filed its lawsuit before 2007 or within three years of the 2004 consent decree with the federal government. Guam’s 2017 lawsuit was thus ruled too late.

Guam’s entering into a consent decree with the U.S. Environmental Protection Agency was also considered a CERCLA settlement already, according to the decision, because it settled Guam’s claims and liabilities under CERCLA.

“From Guam’s perspective, the result we reach today is harsh,” U.S. Circuit Judge David S. Tatel said in the decision. “Unfortunately for Guam, however, ‘where a statute is clear, the courts are not at liberty to construe the statute other than according to its terms, or to depart from its clear requirements.'”

The U.S. already moved earlier to dismiss Guam’s lawsuit, also using the argument that Guam filed its case too late. But a District Court of Columbia judge denied the U.S. government’s move to dismiss Guam’s case.

This latest appellate court ruling now reverses the district court’s denial of the U.S. government’s motion to dismiss and remands the case with instructions to dismiss Guam’s complaint.