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THE POLLUTION ALL-STARS

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But in his testimony, Bush revealed industry's real motivation: to hamper the discovery process in lawsuits brought against polluters and to limit the media's access to damning reports.

His voice shaky with emotion, Bush told Buster's committee, "If you don't think that the press can tear you up, you're wrong." And if that doesn't happen, "Mr. David Baron down in Tucson will bring an action." (Baron, you'll recall, is the environmental expert for the Arizona Center for Law in the Public Interest.)

Environmental consultant Jim Lemmon wonders, "Why are they [industry] pushing this stuff? There's gotta be a reason, and the reason is they don't want any more of these class-action suits. They don't want any more results like this Hughes Aircraft case. They don't want to be put in a bad corporate image."

A class-action lawsuit brought against Hughes Aircraft in Tucson is a sterling example of why SB1290 is dangerous. And why the Pollution All-Stars want it to pass.

In 1991, Hughes offered a settlement of $84.5 million to 1,620 people who drank water tainted with TCE (trichloroethylene), a suspected cancer-causing solvent dumped at the Hughes site in south Tucson over three decades. Lemmon believes the environmental audit bill would have gotten Hughes off the hook by making crucial documents privileged. In the early Seventies, he says, Hughes hired an engineer who conducted tests and told the company it had a serious groundwater-contamination problem. Hughes "sat on that report. That report was never given to the regulatory agencies. It was only during discovery, during the toxic tort litigations and the wrongful-death claims, that that report came to light," Lemmon says.

Under SB1290, that report would have been kept secret, because at the time of the lawsuit--which wasn't filed until the mid-Eighties--it hadn't been proved that Hughes' internal report revealed a clear danger, Lemmon argues. (The bill gives the court the right to unseal documents attesting to a "clear, present and impending danger.")

If SB1290 had been in effect, Lemmon concludes, Hughes "would have said, 'Yeah, we did it, and we'll clean it up, but tough luck for all you people who died, because you can't use this evidence against us.' And it was that evidence--of their knowledge that there could be a problem--and the failure to act is what I think convinced them" to settle.

For the hearing before Buster's panel, the Chamber of Commerce imported the author of similar legislation passed last year in Colorado. Cynthia Goldman assured the committee that the bill would encourage compliance. (She should know. Her husband, Jonathan Goldman, is a spokesman for Coors Brewing Inc., which was forced to pay about $250,000 in fines after the results of a $1 million self-audit became public. The Coors case is often used as the example of why the legislation was needed in Colorado. Of course, if Colorado had had SB1290 on the books, Coors never would have been fined, and the public never would have known about it.)

Since the Colorado legislature approved the measure last year, Goldman says, she's found six instances in which companies complied with the law by reporting the results of audits to Colorado authorities. None involved substantial pollution.

Randall Weiner, an attorney for the Land and Water Fund of the Rockies, opposed Colorado's bill and continues to oppose the law. "We're opposed to any self-evaluation privilege, because it hasn't been proven that that privilege will lead to more environmental compliance," Weiner says. "No other criminal is able to avoid penalties merely by confessing."

The Arizona Chamber of Commerce did not invite attorneys from Oregon to testify before Buster's committee. Oregon has had an environmental audit bill even longer than Colorado. If it had heard Oregon's story, Buster's committee would have learned that the law has had no impact in that state, according to its proponents.

Lynne Perry, a Portland lawyer, has been in charge of surveying Oregon companies to see if the law has had an effect. (A colleague from her firm wrote and lobbied for the law's passage.) In more than a year, it has not encouraged one company to self-audit and report the results, Perry says.

Although the state auditor general believed DEQ to be inadequate in its monitoring and enforcement efforts, Buster believes regulators should lighten up even more. He tells New Times he wants to "create a spirit of cooperation instead of confrontation" between regulators and the regulated.

Still, when SB1290 came before his committee on February 16, Buster was more than willing to play hardball. Buster refused to entertain an amendment drafted by the Attorney General's Office and proposed by Senator Ann Day, a Tucson Republican, to kill the secrecy provision and to reduce the whole thing to a pilot program. (Day later supported the bill, anyway, making the committee vote unanimous.)

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Amy Silverman is a two-time winner of the Arizona Press Club’s Journalist of the Year award. Her work has appeared on the radio show This American Life and in the New York Times, the Washington Post, Lenny Letter, and Brain, Child. She’s the co-curator of the live reading series Bar Flies, and a commentator for KJZZ, the NPR affiliate in Phoenix. Silverman is the author of the book My Heart Can’t Even Believe It: A Story of Science, Love, and Down Syndrome (Woodbine House 2016). Follow her on Instagram (@amysilverman), Twitter (@amysilvermanaz), and at amy-silverman.com.