By New Times Staff
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Ray Stern
By New Times Staff
By Stephen Lemons
By Chris Parker
Ed Pond was more than a little insulted.
No company should have the kind of constant, easy access to high-ranking environmental administrators that the American Smelting and Refining Company seemed to. Pond figured the company was trying to get him fired from his job at the Arizona Department of Environmental Quality.
In September 1993, Pond detailed his feelings in a memo to then-director Ed Fox and his superiors at DEQ.
"I am extremely upset," he wrote. "I cannot tolerate personal attacks ... especially when those attempts are made to my superiors in a secretive fashion."
Pond, a project officer at DEQ, had been overseeing Asarco's efforts to obtain an aquifer protection permit for more than a year. The company needed the permit to excavate and operate a new section of its Silver Bell copper mine, about 23 miles west of Tucson.
In order for Pond to write a permit for Asarco, the company had to show it had complied with a 1986 law that aims to protect Arizona's underground water reservoirs, or aquifers.
The Silver Bell, Pond knew, had a history of water-pollution problems. In 1993, he had notified another section of DEQ about "greenish stuff" discharging into arroyos just downstream of the Silver Bell. The arroyos were found to be tainted with mining by-products, including health-threatening heavy metals; Asarco was fingered by state and federal officials as the polluter.
One of Pond's main efforts in regard to aquifer protection at the Silver Bell involved a "dump leach" area. In a dump leach operation, huge mounds of crushed rock are treated with acid to release copper. Pond felt the pretreated rocks should be deposited on a thick plastic liner to prevent acid and suspended metals from seeping into the ground and, eventually, poisoning an aquifer that might be needed as a future drinking-water source.
But liners can cost as much as $1 million; they also can drive up processing costs for mines, which must take care not to puncture the protective coverings.
Asarco argued that no liner was needed. The ore could sit on bare earth, the company reasoned, because a combination of local geology and an arid climate would keep any contamination from entering the groundwater.
Pond, who once worked in the mining industry, recalls that, as the dispute continued, Asarco often went over his head and complained to his bosses. Asarco claimed he had a "hidden agenda" and an "antimine" point of view, he says.
"The mines put a lot of pressure on us to approve their stuff," says Pond. "And, of course, they apply a lot of pressure the other way--with legislation and lobbying and whatever they do behind the scenes."
Asarco's Tucson office referred all questions regarding the Silver Bell to a company environmental official, who did not return phone calls.
But to this day, former environmental director Ed Fox says he did not respond to pressure from the mines when he removed Pond from the Silver Bell case in late 1993.
And, to be fair, many environmental activists view Fox as an honest administrator whose efforts to organize DEQ into an effective agency were hampered by his struggles to protect Arizona environmental laws from assault by Republican legislators.
Fox recalls telling Pond he was talented and had done a good job. Unfortunately, Fox says, Pond was becoming "the issue"--distracting Asarco from the environmental concerns surrounding the permit.
Pond was transferred to a different section of DEQ, where he no longer handles mining permits.
State records show that after Pond's ouster, DEQ consulted the Environmental Protection Agency about the liner dispute; the federal agency would not back the geologic concept upon which Asarco based its no-liner theory.
Nevertheless, Asarco got its aquifer protection permit--without paying for a costly liner.
The story of Pond, Asarco and the Silver Bell could be seen as an isolated incident, an aberration in the workings of the aquifer protection section, a little-publicized subagency of the state's Department of Environmental Quality.
But the tale of the Silver Bell is no aberration. It is a direct result of a new approach to environmental regulation--an approach that Governor Fife Symington has supported and that congressional Republicans want to bring to the entire nation.
During the Symington administration, DEQ has operated within a management style that closely matches the reform agenda of Republican revolutionaries.
State regulators are expected to work with, not police, the "regulated community." Because penalties and enforcement actions discourage industries from cooperating with the government, regulated industries should be treated not as targets, but as customers. Of course, customers have the right to complain.
And they do.
Just ask Ed Pond.
Nationally, Arizona's aquifer protection law is considered a model pollution-prevention statute. It was designed to protect Arizona's underground water supply, which, by law, must be treated as a drinking-water reserve. Its mission was to issue and enforce permits to potentially polluting industries--before they fouled the aquifers of this arid state.
Babbitt, now the secretary of the Interior, was hailed at the time for drafting visionary environmental law that focused on pollution prevention. And that law was produced through consensus among representatives of agriculture, mines, industry, cities and environmental groups.
This is exactly the sort of local, consensual environmental regulation Governor Fife Symington has publicly extolled. (Doug Cole, the governor's spokesman, did not return repeated phone calls or respond to a written request for an interview with the governor.)
Six months ago, Symington voiced his environmental views in a speech to the conservative Heritage Foundation in Washington, D.C.: "Obviously, we have to manage our land, water, air, timber, minerals and wildlife with care. Just as obviously, that duty is usually best understood and carried out by the people living on that land."
The governor explained that "environmentalism--stripped of the quasi-religious nonsense that today often goes with it--amounts, in the end, to simple stewardship."
But a New Times investigation shows that Symington's variety of simple stewardship has hamstrung environmental protection that even business acknowledges is important to Arizona's future.
During the Symington administration, the aquifer protection section has never received the kind of basic support that would allow it to regulate adequately.
And even as the program struggled with understaffing, Symington's legislative allies, along with business lobbyists, have worked to weaken the aquifer protection law DEQ would be enforcing, if it did have the necessary manpower.
Republican revolutionaries say they want to streamline environmental regulation, cutting costs yet protecting our national heritage.
But a review of hundreds of enforcement and permitting documents in DEQ's aquifer protection section shows that the Symington approach to environmental enforcement has produced precisely the opposite result: higher costs to business, along with inadequate protection of the environment.
The review shows that:
* The aquifer protection program has been chronically underfunded and understaffed. The budget has remained flat at $1.9million for three years, and a recent study suggests that the staff of 33 would have to be increased by 75 people to deal with a huge permitting backlog.
* DEQ has insufficient staff to meet a legislative mandate that all backlogged permits be issued by 2001. So, at the Legislature's urging, the department has begun planning to "privatize" by using environmental contractors, who usually work for industry, to help with permitting work, raising serious conflict-of-interest questions.
"These consultants have to do business in Arizona," says David Baron, a lawyer for the Center for Law in the Public Interest. "There may not be a direct conflict of interest, butthese consultants have to do business, and if they get a bad reputation for being hard on industry, they can't get business.
* The many mines and industries that have been unable to obtain aquifer protection permits must operate under temporary permits. DEQ officials admit they cannot track all of the industries and mines with these temporary permits. So DEQ has no idea whether they are complying with the law.
* DEQ has allowed some mines to delay getting their permits for years, while forcing some small businesses--businesses that pose far less risk to underground water supplies--to go through the process sooner.
* Public files on companies are often incomplete, and staffers in the aquifer protection section admit they do not know the status of all cases.
The confused recordkeeping in the aquifer protection section creates situations that would be perfectly at home in a novel by Franz Kafka.
Take, for example, the baffling case of Lawn and Garden Supply, a wholesale distributor of garden supplies, including pesticides and fertilizers.
Lawn and Garden had either one or two socalled dry wells (there is some confusion inDEQ records about the number) on its property. The dry wells were used to collect rainwater and other run-off and to funnel it into the ground.
In 1989, under the theory that Lawn and Garden might be sending wastewater laced with pesticides and fertilizer underground, DEQ's aquifer protection section ranked the company the most dangerous potential polluter in the state. It was, in the eyes of aquifer protection bureaucrats, more environmentally threatening than even the largest copper mine.
Despite the ranking, DEQ did not take swift action.
In fact, later in the year, DEQ concluded that there actually was no groundwater contamination that could be linked to the company's wells.
The company subsequently sold some of its land to the City of Phoenix, which had plans to widen a street. One of the dangerous (or, perhaps, innocuous) dry wells was located on that land. The city sealed the well and paved it over.
But in 1990, DEQ told Lawn and Garden that it needed to get an aquifer protection permit for the well it had sold to the City of Phoenix.
Nothing happened until 1993. By then, Lawn and Garden had itself been sold. The new owner hired a lawyer from a high-priced firm, who explained to DEQ quite a few times that the dry well, which had never been linked to any significant groundwater contamination, was now under a street and was no longer owned by Lawn and Garden Supply.
DEQ responded by sending files on the company to the agency's hazardous-waste section, which conducted an on-site inspection to see if Lawn and Garden's unpolluted property was in violation of hazardous-waste laws.
A May 1995 letter from the hazardous-waste section, referring the company's case back to the aquifer protection section, is the last document in the Lawn and Garden file at DEQ.
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.
"I think Ed had a realistic picture of what would happen to him if he took on the mines," says Bouma. "And he decided, with all of his other problems, that he did not need to walk into that buzz saw."
Two years ago, Fox successfully fought off an attempt by industry lobbyists to scrap the entire aquifer protection program.
Last year, he defeated an effort by Bowers and Buster to pass a law that would speed up permitting times by forcing DEQ to issue permits within prescribed time frames. Such a plan would cripple DEQ's ability to obtain and process the critical data necessary to issue a reasonable permit, environmentalists say.
Governor Symington remained silent on the issue.
Fox also opposed a Bowers-Buster move to allow businesses that tell DEQ they have polluted to keep information on that pollution secret. The Legislature passed the bill.
Symington was faced with the very real possibility that the bill, which opponents labeled the Polluter Protection Law, would be shot down by voters in an initiative election. He vetoed it. But Bowers and Buster say the governor has assured them of his support when both of these bills come up again in 1996.
Fox is now an environmental vice president of Arizona Public Service Company, a state-regulated utility. As such, he's in no position to rankle either Symington or the Legislature. Insiders say he resigned because of the extremist, anti-environmental political climate emanating from the Governor's Office and the Legislature. Fox will only say he resigned because he grew "tired."
He remains outwardly loyal to Symington. The governor cares about clean air and water, he says. Don't listen to his rhetoric; look at what he's done.
One thing Symington has done is appoint a new director for the Department of Environmental Quality: Russell Rhoades, a former upper-level assistant administrator for the EPA in Dallas. Rhoades would not return phone calls or respond to a request for an interview.
But there are some indications of the new director's views toward environmental regulation. Rhoades wrote a letter to Governor Symington on December 1, 1995.
"I share your commitment to protecting the environment as essential to the sustained economic health of the State," he wrote.
He closed the letter by saying, "I look forward to working with you and our customers to continue advancing the needs of Arizona in developing national environmental policy."
The customers may be looking forward to it, too.
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