By New Times
By Connor Radnovich
By Robrt L. Pela and Amy Silverman
By Ray Stern
By Keegan Hamilton
By Matthew Hendley
By Monica Alonzo
By Monica Alonzo
It's a great thing, DEQ director Ed Fox says, because his agency is not--and probably never will be--financially capable of enforcing all regulations.
The citizen-suit provisions for air and water quality were written into Arizona law in the Eighties, as part of a compromise between environmentalists and business groups. The provisions were put in to appease environmentalists who were ready to launch a referendum that would have made environmental regulations much stricter.
Now the chamber wants the citizen-suit provision out, and David Baron of the Center for Law in the Public Interest is livid about it. "What do we get for being cooperative and making an agreement with these people? We get duplicity," he says.
Bowers wants the provision out because, he tells New Times, it "allows there to be four million DEQ directors running around!"
He's off by 1 million percent. The water section of the law has been invoked a grand total of: four times.
The air section has never been used.
Baron, however, cautions that the low numbers of lawsuits are deceptive, because such suits can also be filed under federal law and because citizen suits are a valuable bargaining chip that make "industries think twice when they violate the law. They know that even if DEQ doesn't do anything, which is more often than not the case, they could still be subject to citizen suits."
Attorney Jeff Bouma is probably the state's leading expert on citizen suits, having brought three of the four Arizona actions. When he testified before Bowers' committee, Bouma spoke of a case settled in 1991, in which a wastewater-treatment plant was polluting one of Arizona's natural wonders, Oak Creek. DEQ hadn't enforced the law, so Bouma pushed. In the end, the pollution stopped, and the polluter--Los Abrigados resort--paid $200,000 to the state general fund, $50,000 for local environmental enhancement and $10,000 for the Great Arizona Cleanup.
Bouma pointed out to Bowers' committee that, the infusion to the state budget aside, HB2196 would stamp out "free legal work" for the state: Bouma didn't take a dime for his efforts.
And he'll take no fee from Robin LaRue, who has a citizen suit pending. LaRue is a 59-year-old artist from Kingman, and until recently, her pride was her goats, which swept the awards at the last Mohave County Fair--seven first places and one "Grand Champ of Show." But LaRue had to get rid of her goats; she might have to sell her land, too, if she can find a buyer. A wash that runs across her property has been flooded repeatedly with sewage and other run-off from a truck wash and a diner. Bouma says the Blue Beacon Truck Wash and the Petro Stopping Center along I-40 are among the busiest west of the Mississippi River. (Jim Vierrig, attorney for the defendants, declined to comment. However, Vierrig did confirm that during the Eighties, while working for then-attorney general Bob Corbin, he authored Arizona's citizen-suit statute.)
Bouma says of LaRue's lawsuit, "We haven't gone out and done one test by ourselves. . . . [The state's] records hang 'em."
The state has documented the pollution on LaRue's land, according to a DEQ inner-office memo dated January 1994. The memo explains that LaRue has complained for years about "the crud that creeps down the wash each winter from the two effluent discharges." It details findings during numerous visits to the wash. Sometimes the effluent was "very brown," the records show. Once, the main flow revealed "a thick layer of sewage sludge covered with algae."
On October 21, 1993, the state inspector noticed, "In the areas to the side of the main flow there were depressions filled with water and large numbers of brown particles which were suspended and not settled out. The brown particles are the sewage sludge floc particles that have been carried into the wash by the Petro Stopping Center wastewater treatment plant effluent. This is grossly improperly, partially treated sewage which is very high in harmful fecal coliform bacteria and may also carry any number of harmful or deadly viruses."
Although DEQ has tracked the pollution, the state has done nothing to force the truck wash and diner to clean up the land and stop polluting, Bouma alleges. So LaRue and Bouma have taken action to force DEQ to do its job.
After Bouma finished testifying, the committee had no follow-up questions for him. The panel voted to approve HB2196.
Speaking by phone from her home on a recent stormy evening, LaRue explains that the "slimy stuff" was running 30 feet from her home, and that during heavy rains, it had covered most of her 40 acres.
Asked about her view of Bowers, a fellow artist, LaRue says: "How long would this condition last in his backyard? I literally feel that I've been gone to the bathroom on.
"I want to be a small businessperson. I want to live the American dream. And here I am not able to have this business because of this potentially deadly water in my backyard. I'm a private property owner. I have rights, don't I?"
HB2196 squeaked through the House last week, and now moves on to the Senate.
It is not HB2196 alone that has landed Bowers in the Pollution All-Star lineup.