Protecting the Environment? What's Up with That?

This week's column is one of those "Is there something in the water at the Legislature?" stories. You've got a major developer in Pinal County, who just doesn't care about environmental regulation; he figures that fines are merely a cost of doing business. You've got a pipeline company that has a major break, with gasoline flowing near homes in Pima County and which causes massive lines at gas stations in Phoenix. You've got a hazardous waste treatment facility that has a contract with the State of California to deal with toxic waste collected in methamphetamine busts in California, and the employees wind up selling the seized chemicals on the street to drug manufacturers. And the reaction in the Leg is to complain that ADEQ is just too tough on enforcement and we should abolish it? These folks truly are from a less reality-based universe.

In other news, they changed -- in both length and difficulty -- the El Tour de Phoenix course, and it was a tough day out there on Saturday. I missed a "gold" time by 17 minutes, but most of my friends from ABC missed as well, at least according to the website, so there's apparently no shame in silver and 3:52:10 for bicycling 74 miles.

CHAMBERS' LAWYER REPRESENTS ADEQ'S SPEEDY TARGET
East Valley Tribune, Apr. 3, 2005

You may have been curious when the Arizona Legislature voted, for one day, to abolish the Arizona Department of Environmental Quality. Legislators were upset ADEQ was enforcing the law, which struck them as inappropriate behavior.

(Disclosure: ADEQ’s director, Steve Owens, is a friend and I practice law with his wife. But you probably knew that already.)

The legislators may have been confused by national environmental policy, where policies’ names represent exactly the opposite of their effects. Thus, “Clear Skies” would increase air pollution, and “Healthy Forests” means cutting trees. That the Arizona Department of Environmental Quality would act to protect environmental quality was just too much for some legislators to handle.

Helping lead this puzzling fight against protecting the environment, according to most Capitol observers, were the Greater Phoenix Chamber of Commerce and Arizona Chamber of Commerce. Both Chambers have outsourced environmental issues to attorney David Kimball, who represents both the Chambers and his own clients with environmental “issues.”

Most interestingly, Kimball also has represented Innovative Waste Utilization. You should recall IWU, a hazardous waste facility in Phoenix; in 2001, it got a 10-year permit from ADEQ to store, treat, and dispose of hazardous waste, and almost immediately, bad things started happening.

Much of the waste at IWU came from California, which sent chemicals and equipment seized from raids on illegal methamphetamine labs for treatment and disposal. Meth lab waste is extremely toxic, so much so that our Legislature just classified making meth with children in the home as felony child abuse.

IWU ran a sloppy operation, with bad paperwork and procedures. But sloppiness was the least of it. Instead of treating the waste, IWU employees started selling the chemicals to meth labs in Arizona and California.

Law enforcement started hearing rumors about IWU almost immediately. Police videotaped illegal diversions and made undercover purchases. A California bust found chemicals previously seized and shipped to IWU, then sold by IWU employees back to meth labs in California.

After building a criminal case, in early 2003 a multi-jurisdictional task force raided IWU. Eventually, several employees pled guilty to numerous felonies; ADEQ then spent some $700,000 to clean up the IWU site.

Following the raid, ADEQ revoked IWU’s hazardous waste permit -- and IWU appealed, claiming that the State didn’t really have a good reason for taking the permit away. Apparently nobody in business these days takes responsibility for anything, preferring to pocket the profits while blaming any problems on a “few” “low level” “bad apples.” It’s the Bernie Ebbers WorldCom defense: Top management got all that money precisely so they wouldn’t be actually responsible for anything.

It was an interesting appeal hearing. IWU didn’t put on any witnesses, but instead just complained about ADEQ’s evidence, that ADEQ shouldn’t rely on search warrants, grand jury indictments, and guilty pleas. The administrative law judge wasn’t impressed, especially when IWU kept raising arguments he’d already ruled against before the hearing, and when the judge found that IWU misstated and overstated the record -- which, in a delicious bit of understatement, he said was “a fact diminishing validity that might otherwise be accorded to its arguments supported thereby.”

So here’s how this particular game works. David Kimball not only served as counsel for IWU, he speaks for both Chambers on all matters environmental. He gets friendly legislators to vote to abolish ADEQ. Meanwhile, Kimball’s minions now are suing the state to keep IWU operating.

That’s all you need to know about the Chambers of Commerce view of proper environmental policy. They’re happy to help bash the agency charged with protecting the environment -- while their representatives try to keep in business a hazardous waste treatment facility whose employees engaged in the wholesale meth trade.

It’s ADEQ no, but IWU yes. The Chamber of Commerce types apparently don’t mind being in bed with people who support recycling, at least the recycling of California methamphetamine here in Arizona.

After all, protecting the environment is meddlesome government. Selling meth -- now that’s a business, after a fashion, and the Chambers certainly wouldn’t want to do anything anti-business.