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."
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."
DEQ also failed to give its contractors a clear set of directions for handling these huge sites, with predictably chaotic results. For example, the west central Phoenix study has focused on businesses near the most contaminated wells, while just one mile to the south another contractor is wading methodically through all 850 businesses located within the boundaries of the West Van Buren study area.
Even touchy labels like "high priority," used to describe suspected polluters recommended for intensive investigation, are applied inconsistently and sometimes misleadingly. More than 100 businesses in the West Van Buren study area, which covers thirty to forty square miles, have been categorized in preliminary reports as high-priority sites warranting further investigation. But the same report elsewhere characterizes this group as having low potential as sources of significant pollution, and recommends the agency focus on businesses in the "higher" and "highest" priority categories.
"These reports are making the Valley's financial institutions very nervous," Kimball says. "A banker sees a business labeled a high-priority suspected polluter in a state Superfund site, and it becomes very difficult for the business to obtain a loan or finance a sale."
"If you read the fine print, `high priority' actually means `low priority,' but that's certainly not the impression left with the reading public," he adds.
The only way to get a handle on the complex pollution problems in urban areas, critics say, is to concentrate on the most contaminated wells first and work outward in the search for pollution sources. They are also urging the agency not to release lists of suspected polluters, no matter how careful the language, until DEQ contractors have solid evidence linking the facilities with pollution discharges.
Weiss says the agency is re-evaluating its administration of the state Superfund, based on the criticism it has received. But DEQ thinks it also needs additional authority from the Arizona State Legislature to subpoena private records and to order companies to conduct tests in connection with state Superfund investigations. Collecting water and soil samples at facilities suspected of causing pollution is the next step in the investigation.
WORD THAT DEQ was seeking additional power spurred immediate action by industry lawyers to cut off political support for the DEQ measure. Upon learning in January of DEQ's legislative plans, Kimball and other members of the state chamber of commerce's environmental committee assembled a group of state legislators and proceeded to wow them with horror stories about DEQ's supposed rampant abuse of authority.
State Representative Bill Mundell, who was present at the meeting, says he thinks the chamber's concerns are "blown out of proportion." But, he acknowledges, some of the freshman legislators in attendance were impressed.
Vieregg contends the chamber's concerns have been somewhat mollified by Randall Wood, the new DEQ director, and says industries may not oppose the measure. "It is possible people won't oppose it because it can be advantageous to have the government able to divide responsibility between parties at a Superfund site," Vieregg says.
Observers with public constituencies, however, worry about the toxic effects of piling foul-ups in the state Superfund on top of the agency's history of well- publicized bungling in other areas. "We see the program as potentially vulnerable because it's always been hard in this state to get support for regulatory programs," says Susan Keith with the City of Phoenix. "And DEQ has always had a credibility problem, anyway.