By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Under SB1290, that report would have been kept secret, because at the time of the lawsuit--which wasn't filed until the mid-Eighties--it hadn't been proved that Hughes' internal report revealed a clear danger, Lemmon argues. (The bill gives the court the right to unseal documents attesting to a "clear, present and impending danger.")
If SB1290 had been in effect, Lemmon concludes, Hughes "would have said, 'Yeah, we did it, and we'll clean it up, but tough luck for all you people who died, because you can't use this evidence against us.' And it was that evidence--of their knowledge that there could be a problem--and the failure to act is what I think convinced them" to settle.
For the hearing before Buster's panel, the Chamber of Commerce imported the author of similar legislation passed last year in Colorado. Cynthia Goldman assured the committee that the bill would encourage compliance. (She should know. Her husband, Jonathan Goldman, is a spokesman for Coors Brewing Inc., which was forced to pay about $250,000 in fines after the results of a $1 million self-audit became public. The Coors case is often used as the example of why the legislation was needed in Colorado. Of course, if Colorado had had SB1290 on the books, Coors never would have been fined, and the public never would have known about it.)
Since the Colorado legislature approved the measure last year, Goldman says, she's found six instances in which companies complied with the law by reporting the results of audits to Colorado authorities. None involved substantial pollution.
Randall Weiner, an attorney for the Land and Water Fund of the Rockies, opposed Colorado's bill and continues to oppose the law. "We're opposed to any self-evaluation privilege, because it hasn't been proven that that privilege will lead to more environmental compliance," Weiner says. "No other criminal is able to avoid penalties merely by confessing."
The Arizona Chamber of Commerce did not invite attorneys from Oregon to testify before Buster's committee. Oregon has had an environmental audit bill even longer than Colorado. If it had heard Oregon's story, Buster's committee would have learned that the law has had no impact in that state, according to its proponents.
Lynne Perry, a Portland lawyer, has been in charge of surveying Oregon companies to see if the law has had an effect. (A colleague from her firm wrote and lobbied for the law's passage.) In more than a year, it has not encouraged one company to self-audit and report the results, Perry says.
Although the state auditor general believed DEQ to be inadequate in its monitoring and enforcement efforts, Buster believes regulators should lighten up even more. He tells New Times he wants to "create a spirit of cooperation instead of confrontation" between regulators and the regulated.
Still, when SB1290 came before his committee on February 16, Buster was more than willing to play hardball. Buster refused to entertain an amendment drafted by the Attorney General's Office and proposed by Senator Ann Day, a Tucson Republican, to kill the secrecy provision and to reduce the whole thing to a pilot program. (Day later supported the bill, anyway, making the committee vote unanimous.)
When David Ronald, an assistant attorney general, complained that investigators' efforts at discovery would be "incredibly hampered" by the bill, Buster retorted that the AG's Office was most worried about losing its authority to the courts. "The problem is you [would be] out of control," he said, sneering. "That's what you don't like."
Buster went on to tell Ronald and DEQ's Fox that they wrongly viewed industry workers as "evil, corporate people."
As of press time, the Senate was poised to pass an amended version of SB1290. The version sent to the House limits the use of the whistle-blower provision and reduces the penalty to a maximum of $2,500.
Rusty Bowers is elegant and bony in appearance, an artist by profession. He's inspired wrath among guardians of the Heritage Fund and advocates of environmental protections.
After seeing a newsletter from Arizonans for Wildlife Conservation--which urged its members to form "phone trees" and try to kill "antienvironmental" bills, many of which Bowers had introduced--he dashed off a letter to the newsletter's editor. The letter concludes:
"Yes, there are terrible things we want to do. Protect private property. Call off the enviro-Dobermans from our people. Give back the hunting and fishing to the hunters and fisherfolks who want to keep it healthy and productive too. Its a scary thing leaving the devil you know for one that you can hold accountable at the ballot. But--I'm willing."
He signed the letter, "Yours in the battle."
Bowers agrees there's an environmental backlash, though he calls it "a moving dynamic. There's an expansion of rules. And then there's a reassessment period where people reexamine the rules."
He sees himself as a consensus builder. While the environmentalists will concede that he's more gracious than some Pollution All-Stars, they don't agree that he's in the middle. They abhor most of the bills he's introduced--particularly HB2196.
In its original form, HB2196 dismantled DEQ entirely. But the chamber people and the DEQ people hammered out a compromise, and everyone was happy with the bill, save for one little thing: HB2196 eliminates the citizen-suit provision from Arizona environmental law. Citizen suits allow individuals to bring legal action if DEQ has ignored a problem for more than 60 days. While it allows for the awarding of attorney's fees, it does not allow the citizen to collect damages; it merely compels DEQ to force polluters to comply with the law and to pay penalties to the state.