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THE POLLUTION ALL-STARS

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When David Ronald, an assistant attorney general, complained that investigators' efforts at discovery would be "incredibly hampered" by the bill, Buster retorted that the AG's Office was most worried about losing its authority to the courts. "The problem is you [would be] out of control," he said, sneering. "That's what you don't like."

Buster went on to tell Ronald and DEQ's Fox that they wrongly viewed industry workers as "evil, corporate people."

As of press time, the Senate was poised to pass an amended version of SB1290. The version sent to the House limits the use of the whistle-blower provision and reduces the penalty to a maximum of $2,500.

Representative Russell "Rusty" Bowers, Republican of Mesa. Office: 542-5874. Chairman, House Environment Committee.

Rusty Bowers is elegant and bony in appearance, an artist by profession. He's inspired wrath among guardians of the Heritage Fund and advocates of environmental protections.

After seeing a newsletter from Arizonans for Wildlife Conservation--which urged its members to form "phone trees" and try to kill "antienvironmental" bills, many of which Bowers had introduced--he dashed off a letter to the newsletter's editor. The letter concludes:

"Yes, there are terrible things we want to do. Protect private property. Call off the enviro-Dobermans from our people. Give back the hunting and fishing to the hunters and fisherfolks who want to keep it healthy and productive too. Its a scary thing leaving the devil you know for one that you can hold accountable at the ballot. But--I'm willing."

He signed the letter, "Yours in the battle."
Bowers agrees there's an environmental backlash, though he calls it "a moving dynamic. There's an expansion of rules. And then there's a reassessment period where people reexamine the rules."

He sees himself as a consensus builder. While the environmentalists will concede that he's more gracious than some Pollution All-Stars, they don't agree that he's in the middle. They abhor most of the bills he's introduced--particularly HB2196.

In its original form, HB2196 dismantled DEQ entirely. But the chamber people and the DEQ people hammered out a compromise, and everyone was happy with the bill, save for one little thing: HB2196 eliminates the citizen-suit provision from Arizona environmental law. Citizen suits allow individuals to bring legal action if DEQ has ignored a problem for more than 60 days. While it allows for the awarding of attorney's fees, it does not allow the citizen to collect damages; it merely compels DEQ to force polluters to comply with the law and to pay penalties to the state.

It's a great thing, DEQ director Ed Fox says, because his agency is not--and probably never will be--financially capable of enforcing all regulations.

The citizen-suit provisions for air and water quality were written into Arizona law in the Eighties, as part of a compromise between environmentalists and business groups. The provisions were put in to appease environmentalists who were ready to launch a referendum that would have made environmental regulations much stricter.

Now the chamber wants the citizen-suit provision out, and David Baron of the Center for Law in the Public Interest is livid about it. "What do we get for being cooperative and making an agreement with these people? We get duplicity," he says.

Bowers wants the provision out because, he tells New Times, it "allows there to be four million DEQ directors running around!"

He's off by 1 million percent. The water section of the law has been invoked a grand total of: four times.

The air section has never been used.
Baron, however, cautions that the low numbers of lawsuits are deceptive, because such suits can also be filed under federal law and because citizen suits are a valuable bargaining chip that make "industries think twice when they violate the law. They know that even if DEQ doesn't do anything, which is more often than not the case, they could still be subject to citizen suits."

Attorney Jeff Bouma is probably the state's leading expert on citizen suits, having brought three of the four Arizona actions. When he testified before Bowers' committee, Bouma spoke of a case settled in 1991, in which a wastewater-treatment plant was polluting one of Arizona's natural wonders, Oak Creek. DEQ hadn't enforced the law, so Bouma pushed. In the end, the pollution stopped, and the polluter--Los Abrigados resort--paid $200,000 to the state general fund, $50,000 for local environmental enhancement and $10,000 for the Great Arizona Cleanup.

Bouma pointed out to Bowers' committee that, the infusion to the state budget aside, HB2196 would stamp out "free legal work" for the state: Bouma didn't take a dime for his efforts.

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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.