By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
So what's the status of the case, if there is one?
Bill Bass, the company's current owner, believes everything has been taken care of.
He believes something else, too.
"This," he says, "was an exercise in complete governmental stupidity."
Nine months ago, newly appointed Aquifer Protection director Chuck Graf organized a compliance, inspections and enforcement office to monitor how well industries comply with their permits. Previously, enforcement cases were passed on to a different section of DEQ, which already was overwhelmed with cases.
Of course, this is still the aquifer protection section; the unit remains understaffed. It especially needs inspectors to visit mines and other industrial operations to see if they are fudging on the agreements they made in their aquifer permits. In 1995, DEQ inspected only 38 out of more than 246 permitted companies.
DEQ should inspect each company once a year. In order to do this, 12 more inspectors would be needed.
There is no computer system to adequately track all potential polluters, especially those who are operating under temporary permits. The lack of personnel and equipment is almost certainly allowing groundwater to become seriously polluted.
An example: Acting on a tip, DEQ inspected the Johnson Camp copper mine near Benson in July. The Johnson Camp mine had been languishing in the DEQ backlog, yet to be permitted. It was scheduled to be "called in" for a permanent permit in 1997.
Three months after the inspection, DEQ notified Arimetco, the mine's owner, that the company was violating the law. "Arimetco has intentionally (cut a liner) and through mishap (rolled rock into leach pond), poor facility construction and management ruined the integrity of liner systems at the Arimetco Johnson Camp mine," DEQ officials wrote.
Arimetco, which contends it did not violate the law, is negotiating with DEQ over an agreement to clean up its operation. Had DEQ not conducted the inspection, Arimetco would have operated Johnson Camp unnoticed for at least another year.
Graf says he's sure there are other mines and industries out of compliance that have not been caught.
Of the 246 companies that are listed in the files of the new enforcement unit, 166 are suspected to be out of compliance. But because of manpower shortages, the unit could only build cases against 20 firms in 1995. Those firms received notices that they were breaking the law. This year, only three companies signed formal agreements that they would correct their problems.
Although the law enables the state to collect up to $25,000 a day in penalties for violations of the aquifer protection law, the enforcement unit collected only $60,000 in penalties in 1995.
And "customers" that have been caught violating their permit conditions sometimes put pressure on the DEQ staffers who are trying to enforce compliance.
"They often contact our superiors and upper management," says Jeff Bruneau, chief of the nine-man enforcement and compliance unit. "This happens quite a bit. Personally, you wish they would work it out with you."
"What's wrong with the aquifer protection program is what's wrong with environmental enforcement throughout the state," says Jeff Bouma, a Phoenix environmental lawyer.
"The aquifer protection program doesn't have the support of state leadership, and it's not properly funded, and the polluters have got a disproportionate share of the power in the Legislature," he says.
"And yet, there are enough ethical, talented people at DEQ who, if they were turned loose and allowed to do what the law tells them to do, could do a very good job."
When Representative Rusty Bowers and Senator Jim Buster speak about regulatory reform, they often make sensible arguments. They talk about the need for businesses not to be shackled by burdensome, irrelevant, costly environmental laws.
These legislators, who are chairmen of key environmental committees, seem to sincerely believe that businesses, when "incentivized" by deregulation, will do a perfectly good job of keeping the state's aquifers clean.
The legislators rely on the Arizona Chamber of Commerce, a sophisticated lobbyist for mines and industry, for much of their information. And it is true that Chamber lobbyists Chuck Shipley and Marc Osborn know practically all there is to know about aquifer protection legislation.
Environmentalists say mines have taken advantage of this expertise, and the backlog in the aquifer protection permitting section of DEQ. Because of the backlog, mine proponents have been able to argue for legislative changes that would weaken the aquifer protection law and make it cheaper and easier for businesses to get permits.
The mine and industry lobbyists, of course, disagree with that analysis.
But laws have been quietly changed. These days, liner requirements have been eased. Private contractors will soon be helping with aquifer protection permitting. Other requirements have been relaxed in ways that might enable smart polluters to avoid cleaning up groundwater contamination.
Another change: Technical guidelines that are supposed to guide regulators and mines through the permitting process have been revised. The new guidelines give mines "a lot more leeway" in regard to obtaining permits, while burdening DEQ with even more technical responsibilities, says Jim McElfish, a lawyer for the Environmental Law Institute. McElfish, an expert on mines, reviewed the documents for the EPA.
Ed Fox, who supported most of these changes, does not think the aquifer protection law has been compromised. Neither do Bowers and Buster.