By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
he state Superfund was the undisputed crown jewel of the 1986 Arizona Environmental Quality Act (EQA), a visionary scheme to clean up polluted groundwater that won warm endorsement from legislators and lobbyists, environmentalists and industrialists alike.
At last, it seemed, the state had a fast and effective way to attack its pollution problems without waiting long years for rescue by the federal Superfund.
But even the program's most loyal supporters are not icing the champagne in anticipation of its third birthday next month. The lean and quick machine they envisioned back in April 1986 has become, instead, a porky bureaucratic beast with something to hate for everyone.
The state Department of Environmental Quality (DEQ), which administers the program, hasn't delivered quick cleanups or recovered costs from polluters, the most important promises in the eyes of public-interest advocates. What DEQ has delivered, a handful of error-prone "studies" combining amateurish science with poorly documented finger-pointing, has triggered outrage among businesses labeled as suspected polluters.
State environmental officials have enough trouble defending their enforcement efforts when they've really got the goods on wrongdoers, given the anti-regulatory sympathies of many state legislators. This time, however, the paranoia of the business community has enough basis in fact to damage the program's future, some observers feel.
"I think the erosion of political support for the state Superfund is a real possibility," says Susan Keith, a former DEQ official now directing water quality assurance in the City of Phoenix's environmental services office. "We are seeing the public, the regulated community and state legislators all express concern about how it is being run."
One immediate manifestation of the program's shaky support is the inability of friendly legislators to find a permanent source of funding. And despite Governor Rose Mofford's emphasis on the state Superfund in her State of the State address in January, special interests have shot down one funding proposal after another in the ensuing legislative session. The program still depends entirely on supposedly "interim" funding from the state's tapped-out general fund.
The Superfund, in short, has become the state's Supermess.
FAR FROM IMPROVING ON the performance of the federal Superfund, the state effort is plagued by many of the same problems illuminated in a critique of the federal program released last month by the Congressional Office of Technology Assessment.
The congressional study found that the federal Superfund has spent more than $2.6 billion but cleaned up fewer than 50 of nearly 1,200 sites on its list. Most of the money ended up in the hands of EPA contractors whose work was often sloppy or inadequate, the OTA report said.
State Superfund officials, after spending three years and more than $4.6 million of the program's $18.6 million kitty, have little to show for the effort: They've completed one small, rural cleanup and have two other minor ones under way. Of the more than thirty sites on the state's Superfund list, most have received no more than a cursory investigation to date. Some of the sites were discovered years before the state Superfund existed and some, such as those in west Phoenix, are so huge they are proving unmanageable.
The agency has yet to either file a "cost-recovery" lawsuit, in which a polluter is sued to reimburse the state Superfund for money spent on an investigation or cleanup, or to announce that a negotiated settlement has been reached to recover any of the $4.6 million spent so far.
Public-interest advocates are particularly sore about the lack of cost-recovery actions because it means the taxpayer, rather than the polluter, is paying to clean up industrial pollution. Even industry lobbyists acknowledge that the law intended for polluters to pay the tab.
"We gave a great deal and accepted broad liability language in the law, based on the theory that in all but a few cases it would be possible to identify the responsible party and reserve the [state Superfund] monies just for those cases where cost-recovery is impossible," says Roger Ferland, a Phoenix lawyer and key architect of the EQA. Ferland represents various businesses subject to state and federal environmental laws.
He says he's not surprised the state has not yet filed a cost-recovery suit, however, since few investigations have progressed very far. "The first case will be precedent-setting," Ferland explains. "They don't want to lose it; they would want to make sure they've got a tight case and you have to have your documentation absolutely solid to do that."
Furthest from completion--and most controversial--are the investigations involving huge sites of groundwater contamination, such as those in west and central Phoenix. More than $2.6 million of the total spent so far has gone to DEQ contractors for these sites, but their investigations represent little more than a reorganization of previously gathered information, DEQ records show.
Norm Weiss, DEQ assistant director for waste programs, attributes the problems to a shortage of experienced hands to oversee the studies and to the agency's lack of leadership. (The agency was without a director from July until last month when Governor Rose Mofford's appointee Randall Wood took office.) "DEQ has a 31 percent annual turnover of personnel in the wastes programs," Weiss explains. "In hazardous waste programs, it's a 36 percent turnover rate, with most of them leaving for better-paying jobs in industry."