After a year of revolving management and a pile of obstacles to achieving the goals of a 2013 consent decree, District Court Judge Curtis Gomez said he will think about placing the Virgin Islands Waste Management Authority under federal receivership.
Gomez raised the possibility after a quarterly compliance hearing held Tuesday on St. Thomas.
The judge mentioned the option at the end of a hearing at which the acting director of the WMA and the attorney representing them said they could not perform the actions laid out on a timetable that had been agreed to five years ago. Not only did WMA acting Director Adrian Taylor and attorney Robert Goldsmith III say they could not comply with the stated action item, they expressed indifference to the objections raised by a partner in the consent decree.
Officials of the Federal Aviation Administration were invited by the judge to attend Tuesday’s hearing. And while they were not present in the courtroom, they submitted a letter stating their position about the municipal landfill operated by WMA on St. Croix, adjacent to the island’s airport.
Concerns about household trash attracting scavenger birds prompted FAA officials and their local partner, the V.I. Port Authority, to call for closure of the Anguilla Landfill by Sept. 30. Tuesday’s hearing was almost two full months after that deadline. A few days prior to the deadline, WMA representatives told the court they had indications from FAA that they were amenable to modifications of the closure deadline.
But when Gomez read a portion of the message submitted to the court, all doubts were erased about the agency’s stance. The FAA said it was against extending the landfill’s operation and opposed a WMA plan to expand Anguilla’s footprint by two and a half acres.
“The document received by the court from FAA said the agency does not concur with extending the life of the Anguilla Landfill or extending the footprint,” Gomez said.
Taylor, who by Tuesday had been on the job as agency director for four months, said Aguilla was fully operational and as far a he was concerned would remain so for the foreseeable future. WMA wanted to be good neighbors to the airport but at the same time, did not have to listen to what FAA said, Taylor said.
His lawyer agreed.
“The FAA does not have jurisdiction over WMA’s operation,” Goldsmith said.
When pressed by the judge about what action WMA would take, Taylor said they would remain open to the public and continue receiving household trash and, over time, would start looking for another location on St. Croix for its operation.
A representative of the co-defendant agency, VIPA, testified at the hearing. As landlord for the landfill, VIPA is responsible for seeing that WMA adheres to the timeline.
VIPA Assistant Engineering Director Daniel Cartwright told the court he was one of the parties who attended a conference call last week about the status of Anguilla in light of the scheduled closure.
Under questioning by Goldsmith, Cartwright said VIPA supported the stance by FAA.
“What is VIPA’s position with regard to the continued operation of the Anguilla Landfill?” Goldsmith asked.
“We do not agree with the extension,” Cartwright said. The consensus at the end of the call favored implementation of a short-term mitigation plan and the development of a long term closure plan, he added.
“My objective is to facilitate closure of the Anguilla Landfill as soon as possible, as the landlord of the property,” he said.
Goldsmith told the court he hoped for a resolution among the parties to the case – FAA, the Environmental Protection Agency, VIPA, WMA and U.S. Department of Justice – to modify the decree. By loosening the compliance requirements, he said, the parties would avoid the risks associated with non-compliance.
For Gomez, that statement came late in the game. He pointed to the timetable filed as an attachment to the decree and a number of action items that should have been carried out in 2013, none of which WMA has done.
“All of these dates have been dishonored. These weren’t dates that were forced on the parties. These were dates the parties agreed were doable,” he said.
That included removal of hundreds of thousands of scrap tires. To date, no tires have been removed from Anguilla. Taylor said there was no funding to pay contractors or related expenses, but Gomez said WMA could not produce proof that funds were being pursued.
Who, at WMA, could speak with authority about efforts to procure funds to remove junk tires, the judge asked.
Taylor said former interim WMA Director Tawana Albany-Nicholas would be the best person for that, Taylor said, but Nicolas no longer works at WMA.
The judge also pointed to an analysis of gaseous byproducts that was supposed to be performed as part of the timeline. A Tier One analysis that was performed indicated the need to establish a gas collection system.
When asked when the Tier Two analysis would be carried out, Taylor told he court he doubted the results of the first test and did not think a gas collection system was appropriate.
“This disagreement with the outcome is no excuse for not coming into compliance with the court. This is the first day the court has heard that there is something wrong with the validity of the Tier One analysis,” the judge said.
Finally, Gomez said, given the record of underperformance and inaction over the past five years, stringent measures may be required.
“This may be the agency that requires a receiver to make sure things get done,” he said.
The only other time a Virgin Islands agency faced this prospect was in the late 1990s when the V.I. Housing Authority was placed in receivership under the U.S. Department of Housing and Urban Development for 11 years.