By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
Critics express sympathy, up to a point. "DEQ is between the proverbial rock and a hard place," observes David Kimball, chairman of the Arizona Chamber of Commerce environment committee. "They've gone out and identified the big urban sites as the worst problems, but it's a very difficult and complex process to establish direct linkages [between polluters and groundwater contamination] on those sites. If they are anxious to recover costs, they need to target places where they can identify a [pollution source] fairly easily."
Nevertheless, he says, "I have clients who've been represented as `high priority' potential polluters when not one shred of hard evidence exists to say they've had a [contaminant] release."
Industry representatives, even those with long histories of fighting environmental regulations, say their criticism is not merely a subterfuge aimed at scuttling the state Superfund. Indeed, chances are good they wouldn't be airing their grumbles at all had it not been for a DEQ decision that rocked the Central Avenue business district shortly before Christmas last year.
DEQ OFFICIALS ADMIT they were under pressure to show some progress when they released a series of unedited draft reports naming suspected sources of massive groundwater contamination in Phoenix and Tucson. The reports, while acknowledging the findings as preliminary, nevertheless listed numerous businesses by name as high-priority candidates for further study.
The reaction among listed companies and Valley lending institutions was immediate. "It caused an uproar," says Phoenix lawyer James Vieregg, who represented DEQ for five years before entering private practice last year. "The banks take these reports very seriously, and anyone who was named in one of them may find their ability to get a loan or sell a property impaired."
Yet in most cases, the reports did not cite concrete evidence linking the businesses with the contamination. DEQ officials admit their contractors have not conducted on-site inspections or collected soil or water samples that could prove a company had leaked or dumped the contaminants, mainly solvents, being found in groundwater. Companies were labeled "high priority" based on such factors as their use of chemicals, proximity to a contaminated well, and record of compliance with environmental regulations.
That's not enough, experts say. "If you're going to name someone as a suspected source, you damn well better have some proof that a release [of contaminants] occurred," Vieregg explains.
And when company officials sought to see the documentation for the listing, they were told it wasn't available. "People were given only thirty days to respond to the original reports, but in many cases these companies didn't even have legal counsel on board," Vieregg says. "The conclusions in the reports were based on records scattered throughout the agency or located in other agencies. In some cases, people were told they couldn't see records because they were part of an ongoing investigation."
As recently as mid-February, three months after the reports were made public, the documents were still unavailable. "We're in the process of gathering them all up and finding a room in which to house them so people can come and look at them," Weiss says.
The reports are so riddled with factual errors, inconsistencies and implausible conclusions, Keith says, "that there's been an undermining of the credibility of the process."
"They totally missed the 19th Avenue landfill as a potential source of groundwater contamination in the West Van Buren area, and it's on the federal Superfund list," Keith notes as an example. "Some of their data was very outdated. The data they had concerning the City of Phoenix facilities was two years old. The current data, which we supplied by way of comment, is actually less flattering to our own facilities than what they had."
Weiss says the high rate of error in the reports is due, in part, to the fact they were released before being reviewed by DEQ project managers. "Usually draft reports undergo internal review before we release them, but we decided to conduct our review concurrently with the public-comment period," he explains.
More than two years had passed since the program had been established, and neighborhood activists were publicly criticizing the agency for its inaction on such high-profile cases as groundwater pollution in west Phoenix and south Tucson, both the sites of unexplained cancer clusters. "We felt the public had a right to see what we had so far," Weiss says. "In hindsight, [releasing unedited studies] may not have been the best way to deal with it."
WHY HAS THE STATE Superfund program accomplished so little in all this time?
Ferland and other worried experts believe the agency erred fundamentally in throwing such a large lasso around the urban pollution sites. The largest sites encompass multiple pools of poisoned groundwater and hundreds of potential contamination sources. The west central Phoenix site, for instance, which includes most of Maryvale, covers not one but four distinct pockets of contaminated groundwater.
"No wonder the contractors are swamped--they've got hundreds of potential sources of contamination to examine in an area that big," Ferland says. "The agency needs to redefine the parameters at some of its sites. In Maryvale, for instance, three of the four [contaminant] plumes are very localized, suggesting they probably are three one-source sites."