‘CUC receiver can’t be sued without court’s consent’

Under the U.S. Environmental Protection Agency’s proposal, the receiver that will be appointed to implement some Commonwealth Utilities Corp. projects will be responsible solely to the U.S. District Court for the NMI.

U.S. Department of Justice Environmental Enforcement Section senior attorney Bradley R. O’Brien said the receiver shall not be personally liable for any act done in compliance with the court’s order.

“No suit shall be filed against the receiver without the consent of the court,” said O’Brien in EPA’s or U.S. government’s proposed order for the appointment of a receiver. The same EPA proposal wants the court to find CUC in breach of stipulated order number 2, or SO2, and to find CUC in contempt.

EPA is not seeking the appointment of a receiver for CUC generally—at least for now—but someone who will take charge of implementing the court’s SO2.

SO2 focuses on oil issues such as repairing and replacing infrastructure, managing tanks and pipelines, and spill prevention and response.

O’Brien said within 60 days, the United States, CUC, and CNMI shall propose potential receivers for court approval.

The United States, he said, will identify up to five potential receivers, while CUC and the CNMI will also jointly identify up to five potential receivers.

O’Brien said the receiver shall have full power and authority to enforce the terms of SO2 and assume all of the responsibilities, functions, duties, powers, and authority of CUC, and any of all departments or other components of CUC.

CUC and the CNMI shall be jointly responsible for the receiver’s expenses. Within 30 days, CUC and the CNMI shall deposit $7 million into an escrow account approved by the federal court.

The $7 million is intended to reimburse all or a portion of the “receiver’s expenses” and for the oil pipeline project and Tank 102 project (diesel fuel tank) funding.

U.S. District Court for the NMI designated judge David O. Carter will hear EPA’s motion on Sept. 24. Prior to the hearing, Carter will conduct on Saturday, Sept. 20, another on-site inspection of CUC’s projects and facilities that have concerns or disputes.

Carter is a Central District of California jurist who is handling EPA’s lawsuit against CUC.

Carter said the schedule should minimally include a walk from the terminal to the plant facility to Tank 102, along the oil pipeline project route.

Carter said he will use the joint report and the Sept. 20 inspections to guide him on how to proceed with the case.

The federal court signed the stipulated orders in 2009, setting the requirements and deadlines for the utilities agency to meet. The orders represent an agreement between the CNMI and the EPA on how CUC will come into compliance with the requirements of the Clean Air Act and the Safe Drinking Water Act.