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THE TOXICS SHUFFLE

ENSCO was the stuff of nightmares, a fuming, snorting, glowering demon that would have gorged on toxic waste, expelling its lethal scat into the air we all breathe. When it inhaled, wastes from all over the West would be sucked into Arizona. It would exhale dioxins, heavy metals and countless, nameless other toxins.

Though the site, fifty miles southwest of Phoenix, never became more than some scalped desert and several hundred tons of metal parts bundled on flatbed trucks, the image of three incinerators and acres of burial pits evoked a menace that, once recognized, captivated imaginations the length and breadth of the state.

The more power its backers seemed to wield over timid state regulators, the more openly it was hated by the public. But the more ENSCO was hated by those who had no power over it, the more perfect a foe it became for a man swinging his sword in search of a dragon.

Newly elected Governor Fife Symington, on the prowl for a quick political victory to launch his four-year term, rose eagerly to the challenge. Within two months of beating Democratic challenger Terry Goddard in the March 6 run-off election, Symington posed proudly in the governor's formal conference room to announce the demon was dead. Surrounded by exultant aides, Symington outlined how he had convinced ENSCO to abandon its half-built waste facility, forgo a lawsuit over lost profits and go quietly home to Arkansas.

The ENSCO settlement did for Symington what the Persian Gulf War did for George Bush. And the governor's coup, at $44 million, cost a whole lot less than Mr. Bush's war, too. Even many Democrats lauded Symington's accomplishment, saying his skill and experience as a businessman--the leadership theme of his campaign--had proved true.

Mundane reality, however, trails after his public-relations coup like an unwanted footnote. "ENSCO is the symptom, not the cause, of our problem," says Arizona State Representative Bill Mundell of Chandler, a Republican who has sponsored hazardous-waste reforms for the past three years. Environmentalists have made this point for years, saying the only way to avoid future toxic-dump disasters is to reduce the amount of waste that needs disposal. Now it is being said by Symington's fellow Republicans, as well.

The problem itself, if not the solution, is all too evident--in places as disparate as comfortable Scottsdale, where thousands of people have been exposed to industrial chemicals in their drinking water, and the industrial west side, where the still-unknown reason for a cancer epidemic among Maryvale children twists like a knife in the gut.

Getting rid of ENSCO wasn't difficult; it was the monster everyone loved to hate. "Difficult" defines the complex and politically charged matter of establishing a hazardous-waste policy that will make ENSCO--or its successor--unnecessary. Now that, as the bloodletting between business and environmental interests over Mundell's most recent legislation demonstrates, is a task requiring leadership.

What Symington has offered is a committee, complete with a committee to assist the committee, to study the situation. ENSCO itself was the product of such leadership by committee ten years ago, and as recently as the Rose Mofford administration, yet another study committee reached inconclusive findings.

Symington got himself elected on the claim that he was a businessman, not a professional politician. But he cannot survive in his new career without political skills. With ENSCO gone, he now stands between two intransigent forces, the state's business lobby and the equally implacable--though far less powerful--public-interest groups. No less problematic is the ambiguous presence of federal environmental administrator William Reilly, who campaigned for Symington but whose policies conflict embarrassingly with some of the governor's key campaign promises.

On this battlefield, no victory is without cost. Arizona, after all, is a place where business expects to operate unbothered by government interference, while common folk support the death penalty for polluters.

OPPONENTS OF ENSCO, in a moment of exuberant populism captured by all the Valley's major media, broke out singing "Ding Dong the Witch Is DeadMDRV" upon learning of the project's demise. Attention was so closely focused on the activists pouring champagne oMDRVver one another that almost no one noticed how the supposedly vanquished ENSCO proponents reacted to Symington's announcement.

As it happens, they were doing much the same thing as their adversaries, only they were doing it out of sight of cameras and microphones. In the secluded midtown offices of their chief political strategist, Alfredo Gutierrez, ENSCO officials celebrated the settlement with a champagne reception.

Gutierrez claims rumors of ENSCO's celebration are greatly exaggerated. He says the champagne reception was actually held to honor his May marriage to Nina Laxalt, a former Arizona Department of Environmental Quality aide assigned to help the governor's office on the ENSCO negotiations. Laxalt, the daughter of Nevada Senator Paul Laxalt, met Gutierrez in November and quit DEQ two months later to go to work for his consulting firm. "Everyone thinks we were celebrating the ENSCO settlement but actually it was the marriage," Gutierrez says.

 

One lesson to be drawn from this anecdote, aside from what it suggests about the generosity of the settlement, is that ENSCO knew it was doomed no matter who ended up on the ninth floor. By the time of the run-off, both candidates were pledged to get rid of ENSCO. This did not represent particular courage--public-opinion polls showed opposition to the plant had overtaken support by a four-to-one margin. Nor had the project's out-of-town promoters won many friends within the Arizona business community.

Scientists thinking in parts per billion might quibble about how much actual danger ENSCO's toxic graveyard could pose, but to almost everyone else the risk seemed too obvious to debate. When formal hearings were held last August, ten years after the Arizona State Legislature voted to establish a state hazardous-waste dump, more than 3,500 people protested at the Civic Center in downtown Phoenix.

The debate over what to do now lacks such political clarity, despite the bipartisan backslapping that accompanied last week's passage of a hazardous-waste bill. The fact is, the new legislation contains many of the same weaknesses that so undermined the landmark state Environmental Quality Act (EQA) of 1986. The EQA, like the new hazardous-waste law, looked very good on the surface but was loaded with exemptions, variances and gray areas that proved, in time, to be crippling.

The shortcomings of the EQA, an ambitious effort at a comprehensive system to protect water quality, all derived from efforts to strike compromises between business and public-interest groups--the same combatants battling over hazardous-waste reforms this year. The tough, relentless skirmishing between these traditional adversaries does not lend itself to civil resolution by an avuncular authority figure, even one with a pocketbook as big as the governor's.

There are no easy symbolic victories to be had on this battlefield, observes Jack Pfister, former head of the Salt River Project, who helped then-Governor Bruce Babbitt referee the combatants during negotiations on the 1986 Environmental Quality Act. "Every step is going to be difficult," Pfister says. "A leader needs patience, flexibility and a resolve to get the problem solved. Babbitt stayed directly involved the whole way through."

Pfister says a leadership vacuum in state government, following the departure of Babbitt and several key lawmakers, amplified weaknesses in the EQA as special interests chipped away at it without much restraint from above. But he believes a new generation of leadership is emerging.

"I think [state Senator] Karan English did a very good job, from what I understand, and Mundell as well," Pfister says, noting that it is nevertheless much more difficult for a legislator to mute the influence of a powerful lobbyist than it is for the governor to clamp down.

In fact, despite lawmakers' efforts, their legislation to create a cogent hazardous-waste policy this spring was compromised well before the session's final gavel. As has so often been true in the past, powerful lobbies made Swiss cheese of Mundell's and English's bills promising "cradle-to-grave" controls on toxic materials. Ironically, one of the lobbyists seeking exemptions was Bruce Babbitt, now representing World Resources Corporation, whose largely unregulated South Phoenix recycling plant is a particular thorn to environmentalists.

"The problems aren't resolved at all," contends Priscilla Robinson, a Tucson environmental consultant who helped write the EQA. "There's no resolution on waste incineration, barring imports and a host of monitoring issues."

Here is the good news and the bad news:
* The bill bans incineration and waste imports to any state-owned facility, but contains language allowing significant room to reconsider, fudge or reverse the bans.

* With a state hazardous-waste dump now uncertain, Arizona's policy is to hope waste producers ship their toxic trash to licensed facilities out of state.

* Meanwhile, the state's reluctance to regulate business has created a growth industry based on accepting wastes, such as asbestos, that other states will no longer allow into conventional landfills. The new legislation does not put an end to this trend; it calls for a committee to study it.

* There are some additional inducements for businesses to reduce their wastes, which up to now have only been affected by indirect pressure from federal environmental laws that have made it increasingly costly to dispose of hazardous wastes. (Disposal of a fifty-gallon drum of solvents, which the high-tech industry uses in huge quantities, can cost around $700 per barrel at licensed hazardous-waste facilities, says Scot Butler, lobbyist for the Arizona Industries Association.) But goals are hazy and do not even take effect for five years.

 

Legislative leaders maintain that their efforts, despite some flaws, are a success. "I really believe we're on the cutting edge in pollution prevention as a state," Mundell enthuses. "This bill definitely does not maintain the status quo. It may not be mandatory, but we got a good pollution prevention-toxics reduction program that's modeled after Oregon's law. Only about eight states in the country have this."

Not everyone shares his confidence. "During the campaign the governor said he opposed incineration; now he says he will study it and see if it's safe," Robinson says, referring to Symington's plan to establish a committee to study Arizona's hazardous-waste treatment needs. Symington also wants to convene a group of "nationally recognized" scientific experts to advise the panel on technical issues.

CRITICS OF SYMINGTON'S approach contend what is needed now is not another study, but rather a clear decision on which disposal technologies--already the subject of extensive national study--Arizona will accept and which ones carry more risk that we are willing to accept.

Rita Pearson, Symington's top aide on the environment, denies that the study committee is nothing more than a convenient dodge. "The governor is not just going over old ground," Pearson says. "A lot of things have changed since 1983. The wastes produced by Arizona industries have changed dramatically in volume and constituencies. In '83, the projected amounts were a lot higher than what has actually come about."

Arizona State Capitol insiders, however, say Symington has been under heavy pressure from Bill Reilly, administrator of the federal Environmental Protection Agency (EPA), to soften his campaign stance against incineration and waste imports. Reilly campaigned for Symington during the run-off and the two confer frequently by phone. "Fife talks to Reilly frequently, and probably listens to him more on environmental issues than to anyone else," Mundell says.

Reilly, however, strenuously opposes bans on waste imports by individual states, saying they hamper the development of regional waste-disposal compacts. Indeed, his advocacy for regional waste-disposal facilities dates back to his days with the Conservation Foundation, whose board of directors includes the chairperson of Waste Management Incorporated, the world's biggest waste-handling conglomerate.

Once elected, Symington started telling legislators he had "problems" with their proposals to ban waste imports to the state facility, ostensibly because the language was too sweeping. Symington was backed up by new Attorney General Grant Woods. (Democrat primary candidate Richard Segal, a widely respected business lawyer, says such objections are baloney. "Of course the state can write its own rules for its own facility," Segal says. "The only possible conflict with federal law would involve banning imports to privately owned facilities, as has been tried in other states.")

Environmentalists contend Symington is backpedaling on a key campaign pledge. "Symington said in the campaign he opposed waste imports," says Michael Gregory, a Sierra Club toxics specialist. "But Bill Reilly came here and campaigned for him, so Symington owes him."

Rita Pearson counters that critics must have misunderstood Symington. "He said he didn't want Arizona to become a dumping ground--as in, he didn't want to create facilities that would become a magnet for other states' wastes," Pearson says. "That's not the same as entering into agreements with specific states that might, for instance, involve us importing certain of their wastes while they might host the regional disposal facility for another type of waste."

Symington aides acknowledge, however, that the EPA wants Arizona's borders to remain open. "It's hard enough to negotiate with the EPA now because we rely on exporting our hazardous wastes," says Doug Cole, Symington's press aide. "It is waving a red flag in front of EPA to talk about banning imports, and there's really no need, as we see it, now that ENSCO is gone. It isn't an immediate problem."

The final legislation banned waste imports to a state hazardous-waste dump, but Symington got language inserted that allows the ban to be lifted if he negotiates a waste compact. Significantly, the ban could also be lifted if the EPA threatens sanctions, which it has signaled it might do. "The EPA notified the governor's office within the last couple of weeks that, now that ENSCO is gone, it will review our `capacity assurance plan' for disposing of hazardous wastes," Mundell says. "If it declares our plan inadequate, it could cut off our Superfund cleanup money or, at the extreme, take over our regulatory program."

Symington's hands-on approach to the waste-import issue was not typical, however. Throughout most of the session, observers say, he was not involved at all. Symington aide Chris Herstam says the governor was absorbed by the ENSCO negotiations, not ducking controversy. Herstam notes that Symington vetoed a bill that would have weakened surface-water quality standards, even though it was supported by two powerful lobbies, the farmers and the cities. "He made some powerful people real unhappy, but he did what he thought was right," Herstam says.

 

WHILE SYMINGTON FOCUSED on ENSCO, special interests were swarming over the hazardous-waste legislation looking for loopholes. "The special-interest lobbyists are out in full force, [and] it's as bad as it ever was," Karan English commented during the session. English, a Flagstaff Democrat, heads the Senate Environment Committee and sponsored the Senate measure.

English suffered a humiliating setback at the hands of mining-industry lobbyist Jim Bush, who was bent on ensuring the law would not impede his clients' thriving business of "recycling" high-tech wastes. California firms annually send tons of chemical-waste sludge to Arizona's smelters, which add the wastes to smelter feed. The mines claim they are recycling the wastes to recover precious metals; environmentalists call the practice "sham recycling" and contend it is unregulated hazardous-waste disposal.

Bush persuaded two of English's fellow Democrats, Bill Hardt and Gus Arzberger, to champion sweeping exemptions for the mines from her bill. Not only would smelters continue to avoid licensing requirements by calling themselves recyclers, mining operations would not have to develop or follow pollution-prevention plans, as would be required of all other industrial-waste producers under the measure.

"It was painful to see it happen," English admits. As if to quiet her own doubts, she adds, "One of the reasons I'm not as concerned about the mining exemption is because the feds are starting to put an umbrella over mine wastes and recycling activities." (Shortly after English made the statement, however, the EPA announced it would regulate only two out of more than a dozen mining wastes it has been studying. And on May 21, a national coalition of environmental groups sued the EPA over "lax" regulations issued in April for smelters and other industrial furnaces that burn hazardous wastes.)

Adding insult to injury, the Republicans made English and other Democrats who opposed the mining exemption feel coerced into supporting it in order to preserve the bill's chances of passage in the face of GOP opposition. "The Republicans supported a comprehensive amendment which was very probusiness and when they didn't get it, they started voting against all amendments," English gripes. "The strategy was not to perfect the bill, it was partisan sabotage."

Republican Bill Mundell, English's counterpart in the state House of Representatives, says he's been trying to obtain hazardous-waste reforms for three years, only to see them shot down by the state's hyperactive business lobby. Mundell says his bill this year, a companion measure to English's bill, was riddled by Bush's sharpshooting shortly after introduction. Asked how the mining exemption made its way into his bill, Mundell explains, "Jim Bush, the lobbyist for Phelps Dodge, gave an amendment to [Prescott Republican] Dave Carson exempting the mines, and it was put on the bill in committee."

The mining exemptions sailed through without so much as a warning shot from the Symington camp. Pearson claims this is because Symington had not had a chance to study the situation. "One argument the mines make is that if they had to follow these rules it would cut their mining operations," she says. "Once the governor gets the facts, I'm sure he'll make a decision."

When the final language was approved late last week, the exemption was still in place. Environmentalists, already disappointed by other changes which they believe weakened the legislation, contend the blatant exemption of Arizona's largest waste producers (by volume) represents a leadership failure.

"What was needed in the closing moments of the argument was for the governor to come in and exert clear direction to protect public health and the environment by insisting that major industries not get blanket exemptions," the Sierra Club's Michael Gregory says.

IN THE EARLY 1980s, Bruce Babbitt faced a dilemma similar to that confronting Symington. Public sentiment strongly favored a comprehensive law to prevent pollution of the state's groundwater supply, but business lobbyists continually thwarted efforts to reform industrial waste-disposal practices.

In 1985 Babbitt, then nursing presidential ambitions, launched an all-out campaign for comprehensive restrictions to protect water quality. Bolstered by a popular revolt over legislative indolence, Babbitt convened a team of interested parties to negotiate the law. But this time, for the first time, the powerful insiders were joined by public-interest representatives.

From then until passage of the 1986 Environmental Quality Act several months later, Babbitt mediated disputes, set the agenda and, when mediation failed, made the decisions. The process may have been motivated by Babbitt's political aspirations, but it gave Arizona the strongest groundwater protection law of any state in the nation.

Babbitt's gumption was all the more impressive because the playing field so heavily favored the special interests. Mining and agriculture, Arizona's historic economic mainstays, dominated the business lobby. Their lobbyists ruled the legislative process like virtual autocrats, doling out campaign funds and demanding--not asking--that legislators veto environmental measures in the name of a sound economy.

 

Groups such as the Arizona Chamber of Commerce, spearheaded by Phelps Dodge lobbyist Jim Bush, dispatched platoons of lawyers whenever a state agency attempted to strengthen environmental protection through rule-making. It was not uncommon to enter a hearing attended by forty or fifty people, in which all but one or two of the participants were business lobbyists.

Environmentalists, perpetually outgunned and outspent, were regarded almost as comic relief by lawmakers. Their sole strength lay in the fact that, even in conservative, antigovernment Arizona, a growing segment of the public shared their concerns. (Around this time Arizona voters were polled on the somewhat whimsical question of a death penalty for hazardous-waste crimes--and the idea was endorsed by a large majority).

In 1985 a coalition of public-interest groups launched a draconian voter initiative to protect water quality, circumventing the legislature and state agencies. The initiative, which opponents said would be an administrative nightmare, almost certainly would have passed but for Babbitt's striking success with the EQA.

Babbitt, however, was a Democrat. The business community represents the very heart of Symington's constituency. "Babbitt was successful because he could listen to all sides and come up with an intermediate proposal, and it would be one that wouldn't stretch either beyond where they were prepared to go," Jack Pfister remarks. "He brought to the table a familiarity with the subject that exceeded even that of some of the other people there. He was flexible, he knew when to be firm, and he was committed to getting a resolution."

Symington aides say it is too much to expect anyone brand-new to the ninth floor to wield that kind of authority over something as complex as toxics, so closely interwoven with our way of life that industry experts say some products could be eliminated entirely by too-strict laws.

But mistakes in the other direction are no less costly, as evidenced by a lawsuit against Hughes Aircraft Company, which caused massive chemical pollution of groundwater near Tucson Airport without breaking any laws then in place. The victims were residents of south Tucson, where rates of cancer and other illnesses are far above national norms. The lawsuit, recently settled, will cost the company more than $80 million.

The new hazardous-waste law leaves so many questions unresolved that even Babbitt, now a business lobbyist, told reporters last week it will need a lot of work in the next session. Only someone as powerful as the governor can keep a balance between the public-interest lobby, with its seemingly outlandish warnings, and entrenched special interests inclined to portray themselves as the last best hope of a healthy economy.

For Symington, the question is not only if he wants to maintain that balance, but also whether he has the skill and commitment to do so.

The ENSCO settlement did for Fife Symington what the Persian Gulf War did for George Bush.

In Arizona, business expects to operate unbothered by government interference, while common folk support the death penalty for polluters.

"A leader needs patience, flexibility, and a resolve to get the problem solved. Babbitt stayed directly involved the whole way through," says Jack Pfister.

Legislation to create a cogent hazardous-waste policy this spring was compromised well before the session's final gavel.

Symington has been under pressure from the EPA's Bill Reilly to soften his campaign stance against incineration and waste imports.


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