WHITEWASH? WHAT WHITEWASH?WHILE GOVERNOR SYMINGTON TOOK THE BOWS FOR GETTING RID OF ENSCO, THE PROTESTERS TOOK THE LUMPS
When Governor Fife Symington killed an enormous toxic-waste project in 1991 near Mobile, he was hailed for ending an environmental nightmare. It was the new governor's first public relations coup.
But the political climate that allowed Symington to put a halt to the toxic-waste facility wasn't created by the governor, his supporters at the capitol or officials at the state's Department of Environmental Quality (DEQ), which oversaw the development.
In fact, for seven years, the state's political apparatus had done all it could to propel the efforts of Environmental Services Co., or ENSCO, the private company contracted to operate the toxic-waste facility. To activists opposed to the facility, ENSCO's cushy relationship with state officials added fuel to the environmental fire. At a now-infamous public hearing at Mobile Elementary School on May 7, 1990, roughly 400 demonstrators against ENSCO were confronted by a small army from the Maricopa County Sheriff's Office. The sheriff's men used stun guns to arrest 18 people. News clips showing the deputies stunning and manhandling protesters served to galvanize the general public against the toxic-waste plant.
By the time the next public hearing was held in Phoenix later that summer, the ranks of a few hundred angry citizens had swelled to more than 3,000.
It was one of the biggest turnarounds of public awareness in recent memory. Suddenly, the ENSCO deal was in trouble. The plunge in political support was so dramatic that Symington was able to kill the toxic incinerators exactly a year later, and he was able to extract $45.5 million from a notoriously tightfisted legislature to pay off ENSCO.
With the ENSCO settlement, the new governor gleamed in the light of his first major positive publicity. Residents near Mobile were spared the noxious side effects of a national toxic-waste disposal site in Arizona.
But nearly three years later, the demonstrators who made it possible--the ones stun-gunned by county deputies and prosecuted by county attorneys--are still mired in a court battle against the government. The protesters still wonder just what hit them the night of May 7, 1990.
@body:What's remarkable about the downfall of ENSCO is how abruptly state policy reversed itself after years of quiet steps toward a regional toxic-waste site. Prior to the violent arrests, Arizona officials were hell-bent on bringing toxic incinerators to the Mobile community. In fact, the Mobile hearing was the last public meeting scheduled before ENSCO could be given its final operating permits.
But critics charge that in its zeal to grease this last obstacle to ENSCO's licensing, DEQ conspired to limit citizen input and steamroll all public opposition.
More ominously, DEQ officials are alleged to have met with law enforcement officials ahead of time to determine who should be arrested at the public hearing if there was a demonstration.
DEQ representatives strongly deny that they engaged in such constitutionally troubling behavior. Sheriff's deputies, however, have admitted in sworn interrogatories that DEQ officials--prior to the public hearing--agreed to point out which protesters were to be arrested at the meeting. In an effort to further substantiate these charges, lawyers for those arrested demanded tape recordings of critical interviews with DEQ officials conducted immediately after the hearing.
Incredibly, the state admits that it destroyed the tapes of those interviews--six months after they were requested by an attorney for Phyllis Richline, a woman who claims police injured her when they forcibly removed her from the hearing. "They knew they were the subject of an investigation and they destroyed them anyway," says Matt Cunningham, Richline's attorney. "That, to me, is amazing." All that remain of the interviews are the summaries contained in a Department of Public Safety report, prepared at the request of then-governor Rose Mofford. The report exonerated DEQ officials of any wrongdoing, concluding that the protesters were responsible for the meeting getting out of hand. "Environmental activists and others initially disrupted the hearing by yelling, screaming, pounding and clapping when DEQ officials attempted to begin the hearing," the DPS report said. But that finding didn't square with the ruling of a justice of the peace in Gila Bend, who quickly cleared seven protesters charged with disrupting the meeting. Charges weren't even filed against the other 11 protesters arrested at the hearing. Skeptics claim the DPS report--based on interviews with seven DEQ officials--is so deficient that there is little reason to believe many of its other findings.
"This so-called investigation is a whitewash and an insult to the public's intelligence," Bradley Angel, of the environmental group Greenpeace International, said at the time. "How can you have a legitimate investigation if you don't bother to interview the public, the hundreds of witnesses who saw it all?"
DPS officials are sheepish today, refusing even to call their report an investigation anymore--it was merely a review, says Sergeant Rick Knight. "I wouldn't say it was in-depth," he adds. Indeed, court records, depositions, videotapes and interviews with several of the parties involved cast a different light on what happened. DEQ, through its planning and setup for the Mobile hearing, attempted to minimize public input into the project. The massive police presence at the hearing also served to limit protest. Even though DEQ knew a large crowd was expected, it refused to take the obvious steps that would have accommodated more people. While state law required the hearing be held at the Mobile school, DEQ didn't make plans to use a back-up site in case the schoolroom turned out to be grossly inadequate, as it was. DEQ didn't even utilize all the space available inside the room. The state agency disregarded a storage area that DEQ officials later admitted was used at past public hearings on ENSCO. "There would have been no problem had they gone and cleared it out," the Mobile school principal, Jerry Begalman, tells New Times.
DEQ did set up folding chairs and loudspeakers outside the hearing room for the overflow crowd to listen in. But it refused to move the entire hearing outside out of fear that activists might throw rocks. "We encouraged DEQ to have a contingency plan just in case there were too many people," says David Schmidt of the Environmental Protection Agency. "We encouraged them to have another meeting time and place, but DEQ didn't take that advice."
Instead, DEQ took steps to keep the public out. DEQ set up 100 chairs inside the room, claiming that the state fire marshal would only permit that many seats. But DEQ had never contacted the fire marshal.
In a sworn deposition, Arthur Snapp of the state Fire Marshal's Office said that if he had been asked, he would have told DEQ that a room the size of the one in Mobile could hold about two and a half times as many people as DEQ set up chairs for that evening. DEQ's false claim that seating limitations were imposed by the state fire marshal merely served as a ruse to limit citizen input.
At the meeting, many of those chairs that were set up were occupied, witnesses say, by DEQ, EPA and ENSCO employees. "The plan was to fill the room with happy, smiling faces," claims Ed Vance, an attorney for four persons arrested at the hearing. In a DEQ memo distributed before the hearing, the state agency urged its employees to arrive early and sit together. "All DEQ employees who are not otherwise assigned to a job . . . should sit together in the designated DEQ section," the memo said. Officials later said that no such section existed.
Limits on free speech went beyond the seating arrangement. The most blatant restriction on the public's First Amendment rights was a DEQ-imposed prohibition against displaying banners or placards in the hearing room. "A blanket rule from the beginning, regardless of where the signs are and regardless if they are blocking anybody's view, that strikes me as very questionable," says Professor Paul Bender, ASU's constitutional authority.
Finally, there was the chilling presence of the Maricopa County Sheriff's Office, which turned out in numbers guaranteed to handle any possible outbreak of unruly public opinion. The Sheriff's Office brought in at least 48 deputies and canine units, as well as a helicopter. The deputies also set up a mass-arrest booking center at a nearby airport. "It was like they were going to invade a country," remembers Brian Nicholas, who was arrested at the hearing but never formally charged. DEQ and the Sheriff's Office did have reason to believe members of Greenpeace might act up at the hearing. Greenpeace activists had halted a similar public hearing in California. They later demonstrated at ENSCO's Mobile facility, chaining themselves to fences and construction equipment in April 1990. Angel claims that Greenpeace had no intention of shutting down this public hearing.
The state was so determined that this last meeting was going to come off that it wasn't prepared to accept the consequences of a boisterous assembly. Accordingly, the Sheriff's Office prepared for the worst. DEQ had given deputies a videotape of the California hearing. Photos of Angel and others involved in stopping construction at the ENSCO site were also shown to deputies.
Just before the meeting, a deal was made. Sheriff's commanders say DEQ officials agreed they would point out people to be arrested if the meeting got disruptive. "The only arrests we were going to make at that time, if it was, you know, a homicide or an aggravated assault or something like that had happened in front of us," said Captain Phillip Babb of the Sheriff's Office. "As far as the demonstrators go, I would look to them [DEQ]." That agreement, says ASU's Bender, is also questionable. "Normally, you would say if the police see someone that is out of control, then arrest him. The notion that they would only listen to DEQ, that alone sounds like the arrests were more politically motivated."
The current lawsuits against the county and state charge that the arrests were part of a conspiracy to deny members of the public their First Amendment rights.
"The agreement between DEQ and the MCSO in which non-law-enforcement-trained DEQ employees 'point out' citizens to be arrested . . . is so outrageous that it is to be regarded as atrocious and utterly intolerable," the suit proclaims.
Since DEQ denies such an agreement was made, verifying exactly what role DEQ had in the arrests might have been resolved by a DEQ video of the hearing. But that video mysteriously shuts off immediately before the arrests begin, about five minutes into the meeting. When it comes back on, a woman is shouting, "Now that you have the public out, what?", and the meeting continues. In court documents, attorneys charge that the portion of the tape that would have shown the arrests was edited out, which DEQ denies. The employee who filmed the meeting, Paul Donovan, tells New Times he "stopped it for a while when all the trouble began, because people were knocking around." Did anybody ask him to stop the tape? "I'm not going to answer that," Donovan says. @rule:
@body:In May 1990, the tiny town of Mobile--36 miles southwest of Phoenix--was one step away from becoming the southwestern train stop for hazardous waste from around the country. A deal to have Environmental Services Co., better known as ENSCO, run Arizona's hazardous-waste facility was seven years in the making. The Department of Health Services--which oversaw the project before DEQ became a seperate state agency--had been involved in developing a hazardous-waste-management program since 1977. In 1980, state legislators voted to officially put the agency in charge of finding a site for a state toxic-waste disposal facility and a private company to run it. The agency was charged with developing and promoting the facility, as well as regulating it. It would become DEQ's baby.
From the beginning, ENSCO got preferential treatment from state authorities. Toward the end of the bidding process in 1983, an official with the Department of Health Services informed ENSCO that it hadn't yet received a bid from any company to run the toxic-waste facility. The same official then flew to Dallas to pick up ENSCO's proposal just hours before the deadline. At the time, the Attorney General's Office raised serious legal questions about accepting ENSCO's bid in this fashion, but it later dropped its opposition, and the contract went through. That contract stipulated that the state would retain 2 percent of the toxic-waste facility's gross revenues, plus $150,000 a year. By 1987, the state agreed to shell out $5 million to pave 21 miles of road from Maricopa to Mobile; ENSCO only pitched in $1.5 million. DEQ was in the process of approving changes to ENSCO's original toxic-waste proposal, which only involved putting a landfill at the Mobile site. The final plan included three toxic-waste incinerators. By 1989, DEQ was in all the way. "The Department regards the permitting, construction and operations of the Arizona facility to be of the highest priority," a DEQ official wrote in a letter to ENSCO.
If everything went as planned, a public hearing in Mobile--set for May 7, 1990--would have been the last step before DEQ and the EPA granted ENSCO the final permits it needed to do a trial burn and become operational. ENSCO, which had begun construction on the incinerators in 1988, estimated it could have the facility running in six months. That was before environmental groups and Arizona residents mobilized. In the fall of 1989, environmentalists began to detail their opposition to the project. Environmentalists hit hard on ENSCO's spotty safety record at a plant in Arkansas: The company had recently been fined $100,000 for 19 violations at the plant, including failing to notify personnel in an affected area of a release of toxins, failure to conduct inspections, and failure to operate the facility in a manner minimizing the risk of release to the environment. At a plant in Tennessee, ENSCO was fined $50,000 for flushing PCBs from transformers without a permit.
By the month before the May hearing, in newspaper and radio interviews, local activists were drumming up support to oppose the project. In the weeks leading up to the hearing, Greenpeace and other local groups estimate they telephoned some 20,000 people, urging them to oppose the facility's construction and to attend the hearing. In a conversation with the Environmental Protection Agency, Greenpeace made it clear that it expected at least 200 people would attend the hearing. The EPA informed DEQ of its conversation with Greenpeace at least four days before the hearing. But DEQ claims it didn't learn until "the last minute" how many people would show up. Officials decided to set up additional chairs outside the hearing to accommodate the crowd, instead of postponing the meeting or holding the meeting in a larger facility.
In planning for security for the hearing, DEQ began making arrangements in April. In the DPS report, DEQ cited several incidents involving Greenpeace that led to its fear that environmentalists would act up. The most damning of those was a videotape of an EPA hearing in Casmalia, California, where Greenpeace demonstrated, picketed, blew whistles and prevented the hearing from taking place. Greenpeace leader Bradley Angel was there. "We gave the video to DEQ to help DEQ prepare for the hearing," says the EPA's David Schmidt. "Apparently, DEQ saw the video, got scared and overreacted and prepared for the hearing in a way we didn't expect." Schmidt said his office advised DEQ to have a contingency plan to hold the hearing at a larger facility at a later date.
Several DEQ officials viewed that tape, including hearing officer Timothy Barnes, the man responsible for running the meeting.
"I remember that tape being shown and some of the people in the room going, 'I wonder if this could happen at the Mobile public hearing?'" said DEQ assistant director Nancy Wrona.
Yet there was no violence at the California meeting, and no arrests. A later protest organized by Greenpeace in front of DEQ's Central Avenue headquarters, just prior to the hearing, was even less eventful. "They were very peaceful," according to Robert Piceno, a DEQ employee who arranged for building security.
But the video of the California meeting traveled quickly. Members of the Sheriff's Office got a copy from DEQ, and received photos of Greenpeace leader Bradley Angel and other activists who had chained themselves to construction equipment and a fence near the ENSCO facility. Law enforcement prepared for the worst. "The protest will involve disruptive activities designed to stop the meeting," Lieutenant Timothy Dorn wrote confidently three days before the meeting. About 25 commanders and deputies were assigned to the hearing initially; that number would later increase to 48. DEQ officials say they had nothing to do with determining how big a police presence was necessary.
DEQ employees began arriving at the hearing about 4 p.m. The state agency later claimed that of the 28 employees who attended the meeting, 18 were assigned specific duties, such as manning public information tables. At 6:45 p.m., DEQ met with Captain Phillip Babb and Lieutenant Dorn, who were in charge of the sheriff's force. Both officers say that's when DEQ officials agreed to point out people to be arrested, and then to testify against them in court. Captain Babb said he also warned officials that, since the room had already begun to fill up, telling people to leave "might not be received very well."
Although officials planned to impose the arbitrary 100-person limit, by the time they stopped letting people inside, roughly 200 people had gained access. That's when environmentalists charge that Nancy Wrona, an assistant director for DEQ, began to point out people for arrest. Wrona strongly denied pointing out anyone, saying she had "no authority to ask the Sheriff's Office to arrest anyone, nor did I." But Pam Swift, head of one opposition group, says she saw Wrona pointing in her direction, where she was standing next to Phyllis Richline. Richline--whose hair is red, like Swift's, and who is similar in age--was later one of the first ones taken out of the hearing. Swift's account isn't conclusive, and from videotapes and other accounts, it's difficult to determine exactly what led to the arrests.
As the meeting begins, the room is crowded, but not full. People peer in through the windows. Timothy Barnes, an attorney serving as the hearing officer, calmly announces the time is 7 p.m. He immediately says that the fire code limits access to the room to 100 people--the number of seats that had been set up. The people standing would have to go outside, Barnes says. But the crowd is reluctant: Several members already know certain loudspeakers outside aren't working. DEQ officials later acknowledged that they attempted, to no avail, to fix some of the outside speakers. The agency claims the wires had been ripped out of the speakers' electrical systems, apparently by protesters.
After Barnes' announcement that the people must evacuate, not surprisingly, the room gets extremely noisy. DEQ couldn't have done much more to anger the crowd than announce that many people would have to leave. Protesters begin to clap and chant, "Outside, outside!"--hoping to move the entire meeting outdoors. The scene, though, is still much more subdued than the one at the California meeting. Barnes, nonetheless, became "very concerned with the potential for violence," according to the DPS report. The crowd eventually quiets down. "Please proceed in a more civil manner," Barnes says. "You call an incinerator civil?" someone yells back. The crowd starts chanting again.
Two minutes into the meeting, Barnes, attempting to continue the hearing, nods to a sheriff's deputy, who immediately puts a portable radio to his mouth and moves out of view of the camera. The chanting continues off and on for at least five minutes, but that is all that happens. There is no picketing, no threats of violence.
Greenpeace leader Bradley Angel--already known to sheriff's deputies--is shown on a videotape getting out of his seat. He then sits back down. While DEQ claims Angel was trying to "control the meeting," others would later testify that Angel was trying to quiet the crowd.
Then, according to witnesses, the first group of arrests begins.
Several bystanders claim at that point they saw Wrona go to a corner exit and again point out members of the crowd to a sheriff's deputy.
Wrona denies that--she says she only got out of her chair to close the door. But a video taken of the hearing shows Wrona get out of her chair at that point, walk to a corner exit, and apparently speak with someone wearing a hat. She goes back to her seat without shutting the door.
The video is by no means a smoking gun; on the tape, Wrona's actions are unclear and it is impossible to tell if the man in the hat is a deputy--as protesters claim--let alone what is said between the two individuals. What happens next speaks for itself.
Deputies, according to witnesses, came after Angel, and people standing around him began to lock arms together.
That's when the stun guns, which can give a jolt of up to 40,000 volts, came out. TV cameras captured police using the stun gun on one of the two women who locked arms with Angel. "It was so strange, so shocking, so removed from context, that the mind just seemed to transfer to the question of, 'Why, why, why is this happening?'" says Betty Langen, who witnessed the scene from the front row. Witnesses became suspicious of the selectiveness of the arrests after Angel and ten others had been dragged out. Although the crowd was still well over the DEQ-decreed 100-person limit, officials went on with the hearing. Deputies, contradicting DEQ claims, later said at least three of those arrested were pointed out by DEQ employees. Two people were arrested who flashed protest signs. By the end of the evening, the police had used the stun guns on five people, and a total of 18 individuals had been arrested. More than 70 people eventually spoke, the vast majority against the facility. About 350 people had signed the DEQ guest book. Within a few days, Maricopa County Sheriff Tom Agnos was calling his deputies' use of stun guns on passive resisters "innappropriate." He would later sympathize with the protesters. "Had I gone down there to attend this meeting and was then told I had to leave the meeting room, I, too, would have been very angry," the sheriff said. But his sympathy had its limits: He would only "verbally reprimand" the deputies involved.
Charges were never filed against 11 of the 18 arrested at the hearing. The remaining defendants would become known as the "ENSCO Seven."
@body:Marlene Stephens and Brian Nicholas, who had spent their weekend calling hundreds of people to protest against ENSCO, both wound up missing the public meeting. They sat through the five-hour hearing in the back of a police van, parked a few miles away in the desert.
Both were arrested and stunned by deputies. Stephens, a local environmentalist, was perhaps the most shaken by the police that night. She was one of two women who hooked arms with Bradley Angel when police came after him. A sheriff's deputy shocked her with a stun gun several times, including at least once after she had fallen to the floor. Nicholas was a California Greenpeace member at the time who had come out from San Diego to recruit people to attend the meeting. He was stun-gunned as he approached the entrance to the room while police were hauling out Angel and Stephens.
Along with Angel and several others, Stephens and Nicholas were then handcuffed and put in a police van, and driven out into the desert. They remained there until the meeting ended after midnight. "It was a considerable period of time," concedes deputy county attorney Maria Brandon. They sat in the dark, stuffy van, with no water and no access to rest rooms. Their hands were handcuffed behind their backs the whole time. Deputies, however, said those detained were treated humanely.
Stephens and Nicholas later wound up at Madison Street Jail, and were released the next day. Before she was let go, Stephens claims she was forced to give a urine test in front of male jail workers. Photos taken after the hearing show at least a dozen marks on her back she claims were caused by the stun gun. "It feels like you're being electrocuted," says Stephens, an epileptic. The day after the hearing, she showed her burns to television crews at a press conference at the capitol. Both Nicholas and Stephens believe they were targeted by police because they looked the part of environmentalists. Nicholas was a member of California Greenpeace--which police had been warned to look out for--and had long hair and a beard at the time. Stephens was standing near Angel. But police reports claim that in a crowd where everyone was making noise, Nicholas and Stephens were among the ones causing the biggest disturbance. The summer following the hearing was "real scary," says Nicholas, as the protesters waited to find out what would happen. It was in that context that Stephens and Nicholas began dating. They now live together and manage the Sunnyslope Mobile Home Park in north Phoenix. Charges against Nicholas were never pursued, and Stephens' misdemeanor charge for disrupting the hearing was dismissed by a justice of the peace in Gila Bend.
"They had a real assumption that there was going to be anarchy," remembers Nicholas. "There was. But it was because of the cops."
@body:In the days and months following the hearing, ENSCO's support slowly began to dwindle away. Legislators, who had sort of winked and nodded throughout the creation of the facility, began to feel the heat.
"I don't think they were paying a heck of a lot of attention to it until the brouhaha," says a legislative analyst who followed ENSCO from the beginning. "After that, so many of the public were asking so many serious questions, they couldn't ignore it."
Almost immediately after that May meeting, Governor Mofford called for a complete review of the toxic-waste plan and extended the public input period. A public meeting that summer drew a crowd of more than 3,000 to Phoenix Civic Plaza.
And Fife Symington, who promised to dump ENSCO in his campaign, was elected governor in February 1991. By May the deal to boot ENSCO was cut. Company officials took $45.5 million in a settlement back to ENSCO headquarters in Little Rock, Arkansas. The contract was officially closed in September 1991. Talk of lawsuits against the county and state began immediately after the hearings. In the end, five people filed claims. Last month, however, Superior Court Judge Michael Wilkinson cleared DEQ's Nancy Wrona and Timothy Barnes of wrongdoing, saying there wasn't "a scintilla of evidence" that state and county officials had made an agreement to arrest those exact people. The judge acknowledged that DEQ had made mistakes in planning the meeting, but didn't believe the state was responsible for what eventually happened.
The judge also dismissed charges that protesters had been falsely arrested and maliciously prosecuted. Other charges against the county--such as claims that deputies used excessive force and intentionally inflicted emotional distress--will go before the court in June.
Those who were arrested in Mobile know the importance of their victory over ENSCO. For some, that is not enough.
"Why risk speaking out if you're going to have an arrest record and a damaged reputation?" asks David Blais, who was one of the last of the "ENSCO Seven" to be acquitted. Blais, who wasn't a protester or a member of any environmental group, attended the hearing simply to distribute campaign literature for a candidate for attorney general. "There's definitely a scare factor that it can instill in the public. It shouldn't be a risk to go to a public hearing, but it was that night.
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