Going Underground

Industry makes secret push to gut laws protecting subsurface water supplies

Manufacturing and mining interests plan to push for legislative changes that could render the state's underground drinking-water supplies vulnerable to a wide variety of pollution.

The proposed changes are detailed in a document prepared by industry lawyers and marked "Confidential" and "Not for Distribution." The document was passed out to state Department of Environmental Quality officials last month.

Three environmental lawyers who reviewed the confidential document for New Times say if any of its 26 proposed changes in environmental law is passed, the safety of underground drinking-water reserves would be significantly compromised.

"This is part of a multiyear strategy on the part of business interests to eliminate the Environmental Quality Act piece by piece," says David Baron, an attorney for Arizona Center for Law in the Public Interest, a nonprofit law firm that has repeatedly taken state and local officials to court to compel enforcement of environmental laws.

Ten years ago, the state's mining and manufacturing interests helped create one of the most enlightened environmental protection laws in the country--the Environmental Quality Act.

A cornerstone of the 1986 act was legal protection for Arizona's underground water reserves, or aquifers, as future drinking-water sources for a growing population in an arid state. At that time, industries, mines and environmentalists agreed that the aquifers should be protected from health-threatening industrial and mining byproducts.

Using the language of the Republican regulatory reformers in Washington, D.C., lawyers for industries and mines in Arizona now say they want to make long-standing environmental laws more functional, workable and practical.

"The initial attitude of drafters of the legislation was that the statute was sacrosanct, and that nothing could be changed, and that everything was basically a carefully worded compromise," says Douglas McAllister, a Phoenix industry attorney who helped draft the proposed changes. "What's happened in reality is that, as the statutes have been implemented, there have been problems."

But environmentalists say manufacturing and mining interests are actually trying to gut the law they once supported.

Baron, who helped draft the Environmental Quality Act, says the industry strategy is to assault DEQ with a laundry list of proposed changes to the law. DEQ will oppose some changes, but--in a spirit of "compromise"--will endorse other changes that will be damaging, Baron asserts

Last year, he says, DEQ did, in fact, endorse changes that weakened the law.
Among other things, Baron and other environmental lawyers say the newly proposed changes in the law would:

* Provide a five-year statute of limitations for underground water pollution, which would enable businesses to avoid cleanup if their pollution remained undetected for five years. Such a law would encourage industries to hide pollution data.

* Make it easier to reclassify underground water reserves from drinking-water to non-drinking-water designations. A non-drinking-water designation allows more pollutants to be discharged into groundwater.

* Lower cleanup standards for groundwater.
* Reduce public involvement in the aquifer-protection permitting process.
* Exempt many industries and mines from getting aquifer protection permits.

* Make it easier for industries and mines to get waivers from the permitting process.

* Weaken DEQ's enforcement capabilities.
McAllister, a lawyer who has represented mining interests, says he disagrees with Baron's interpretation of the amendments. When asked which of Baron's assertions are untrue, however, McAllister says only: "There's a certain assumption Mr. Baron makes that industry is trying to hide from ornot obey the law. Mr. Baron is taking a worse-case approach and a skeptical approach to what industry does."

"The bottom line," McAllister says, "is we don't think any of these changes sacrifice environmental protection."

McAllister says he and others will work with DEQ to come up with "compromises." Then, he says, the Arizona Chamber of Commerce will work to pass legislation endorsed by DEQ that changes the aquifer protection law.

Chuck Graf, manager of the DEQ subagency that controls groundwater protection, says not all of industry's proposed changes would hurt DEQ.

When asked which of the proposed changes are beneficial, however, Graf cites only one example: a clarification of a definition of an inert material such as asphalt. In that particular case, a change in the law would benefit DEQ, says Graf.

But the confidential document obtained by New Times raises the question: Why is DEQ huddling with industry--in secret--in the first place?

DEQ spokesman Jim Mathews says lobbyists frequently approach the agency with legislative changes. That doesn't mean the agency will approve those changes, he says.

Environmentalists, however, insist that, in the last two years, underground water laws have been weakened by industry proposals agreed to by DEQ.

There is certainly reason to worry about pollution of Arizona's aquifers. The 1986 aquifer protection law was passed in the wake of discoveries of serious groundwater pollution.

So far, 39 separate underground water pollution sites have been identified in Arizona. Eleven qualify for cleanup under the national Superfund law. The others must be cleaned up by the state. Many sites are so polluted, scientists fear they'll never be restored to their natural state.

In South Tucson, Hughes Aircraft had polluted underground drinking-water supplies with trichloroethylene, or TCE, a health-threatening solvent, and some locals who drank the water were diagnosed with cancers and other maladies.

In the west Phoenix area of Maryvale, health officials noted children were stricken with leukemia in the same area where underground drinking water had been polluted with TCE by various small businesses.

In Scottsdale, the Indian Bend Wash, an underground drinking-water reserve for more than 300,000 people, had been laced with TCE dumped by Motorola and other high-tech industries.

Underground water reserves also were polluted by the Motorola semiconductor factory at 52nd Street and McDowell, sending a plume of dangerous groundwater contamination west. That plume has combined with other underground pollution and is now threatening the drinking-water supply of Tolleson.

The 1986 law attempted to prevent further pollution of drinking-water reserves, through consensus among industries, mines and environmentalists.

Now Baron sees attempts to change the law as an indication that industry has gone back on its word.

"I guess my question is, 'Where has honor gone?'" he says.

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