Trickle-Down Theory

Who will pay to clean Arizona's contaminated underground drinking-water reserves?

Or taxpayers?
The state Superfund law says polluters should pay. But that may change soon. A state-appointed group in which lobbyists for water-polluting industries vastly outnumber laymen may try to shift the burden onto taxpayers.

The Groundwater Cleanup Task Force, appointed by officials from the Department of Environmental Quality and the Department of Water Resources, is expected to recommend that the Legislature make major changes in the state Superfund law, formally known as the Water Quality Assurance Fund, or WQARF law. The group began meeting last February.

Environmentalists on the task force as well as two environmental lawyers interviewed by New Times fear the group will recommend changes that will benefit polluting industries. Because the 37-member task force includes three citizens, politicos intent on modifying the law may say citizens representing the public approved of the proposed changes.

Phoenix environmental lawyer Jeff Bouma even goes so far as to say citizens shouldn't bother attending task-force meetings. In his view, the task force is just "another effort" by industry lobbyists to "chip away" at state environmental laws.

Among other things, the task force was directed by the Legislature to explore "funding alternatives" for the millions of dollars it will take to clean up contaminated groundwater sites.

Such "funding alternatives" might be the everyday water users or taxpayers--average citizens who had nothing to do with creating the underground pollution in the first place.

It hasn't taken long for the task force to fuel the fears of environmentalists.

At a recent meeting, the task force recommended permanent removal of joint liability from the Superfund Law. Joint liability is a legal principle that says anyone connected with pollution is liable for cleanup costs. The task force also resolved that the removal of the joint liability is "contingent" on finding a "dedicated funding source" (which could be water users or taxpayers) to pay for cleanup. The task force would also have to figure out a new way to dish out liability for cleanup.

The state Superfund law is one of several environmental protection laws sponsored in the early 1980s by then-governor Bruce Babbitt. At the time, it was considered a visionary law because it was based on the principle that underground water supplies should be banked for future use and cleaned up to drinking-water standards. In times of drought, the banked underground water supplies could be relied on for drinking water.

As the Valley endures one of the most severe droughts on record, the philosophy that guided the state's environmental laws seems prophetic.

Today, groundwater furnishes about 50 percent of the Valley's water supply. The other half comes from nearby Salt River Project reservoirs, which catch mountain run-off, and the Central Arizona Project.

If the current dry cycle continues for a period of years, residents of the Valley will increasingly rely on groundwater to make up for the water normally supplied by the lakes, state water officials say.

But high-tech and aerospace firms have polluted several aquifers beneath Phoenix with health-threatening solvents. Despite efforts at cleanup, most of that contamination still exists today, and is spreading.

As the need for that water escalates during dry years, the debate about who pays to clean it up takes on a special urgency.

Up until last year, the state Superfund law said anyone connected with the pollution of underground water should pay to clean it up--the "joint liability" concept.

"Until this last legislative session, the law was fairly stringent in terms of cleanup responsibility," says David Baron, an attorney for the Center for Law in the Public Interest in Tucson. "The principle was that the parties who contributed to the contamination problem would all be held liable, and any one of those parties could be held liable for the whole cleanup cost. The theory was if you couldn't find all the parties, but you found one who was responsible, you could recover at least some of the cost. And that was better than having the public pay."

But last year industrial interests--including lobbyists from the Arizona Chamber of Commerce, the Arizona Mining Assoc-iation and the Arizona Association of Industries, all of whom now serve on the Groundwater Cleanup Task Force--persuaded the Legislature to place a one-year moratorium on joint liability pending the recommendations of the groundwater cleanup task force. The lobbyists successfully argued that joint liability was unfair to the "little guy" who might have been only slightly linked to the pollution, but who under the law might have to unfairly pay millions for cleanup.

The "little guy" argument was a ruse, environmentalists countered at the time. The real issue: Polluting companies want to escape paying millions to clean up underground water supplies.

Even Baron says there are "legitimate areas" that could be reformed in the state Superfund law--like not forcing someone who is only nominally connected with pollution to pay huge cleanup costs.

But if the task force tries to foist cleanup costs on the taxpayers, he says, two problems arise. First, the state has no money. Second, it's not fair to make the public pay.

Environmentalists claim that because citizens are underrepresented in the task force, the views of industry will prevail and state environmental officials will not have the courage to stand up to industry lobbyists. DEQ, says Baron, is "a weak agency" that sees itself as a "facilitator" instead of as a "zealous advocate for the environment."

DEQ officials did not return telephone calls.
"It's a stacked deck," says task-force member Peggy Wenrick, of the Tucson Audubon Society. "We have a pretty clear idea that legislators want to let polluters off the hook."

Including Wenrick, three representatives of citizens groups serve on the task force. But there are 14 representatives from the "private sector," which include representatives of industries known to pollute groundwater.

The task force also includes five members from state agencies and eight delegates from cities, as well as representatives from Salt River Project, the Roosevelt Irrigation District and a private water company.

The task force is co-chaired by two environmental attorneys, Karen Peters and James Derouin, who count industries among their clients. Both say, however, that they are neutral.

"I have no dog in this hunt other than good public policy," says Derouin.
Both Derouin and Peters are convinced that citizens are represented in the task force because officials from cities and the state are in effect also citizen representatives.

What's more, they say, the task force is divided into smaller groups, and members of the public are encouraged to participate in these committees and attend meetings.

But Tom Dwyer, a Phoenix automobile broker who has attended a few of the meetings, says the assemblies are scheduled during the weekdays, which makes it nearly impossible for working people to attend.

"I had an opportunity to speak," he adds, "but I don't know what effect it had.

"I was left with the impression it didn't have any effect at all.