KNAU and Arizona News
4:00 am
Mon April 16, 2012

Governor Signs Environmental Audit Bill Industry Pushed For

Governor Jan Brewer has signed a bill that Arizona industries have been lobbying for for nearly two decades.  

Supporters of House Bill 2199 reads like a Who’s Who of state business groups.

The Chamber of Commerce and Industry, Arizona Public Service, the Arizona Mining Association.

And one reason they support the bill is because they say it protects them from one of the quirks in environmental law.

As industry lobbyist Dave Kimball put it, “As soon as you buy property you are held liable for any environmental condition that has occurred or exists on that property since the beginning of time.”

Kimball is pleased that after more than a decade, this bill has finally become law.

Because, without it, he says, companies would not look for, and may try to hide, environmental problems on their property.

He says clients will ask him, “Do I have to go out there to see if there’s any spillage or releases that may have occurred or any dump sites that may be on my property? The anwer is no, you don’t have an obligation to do that, but if you do, do you know that you have to immediately notify the government and you could spend, because you’re liable, for any contamination that you find on your property, you’re legally liable to address it, if you know about it.  So what people say is well then I won’t know about it.”

Proponents say this new law is an attempt to change that dynamic.

It says to companies, go ahead, do an environmental audit of your property.

If you find pollution, send the Department of Environmental Quality a report and a plan for how you'll clean it up. 

State regulators can’t use any information contained in the audit in any civil action against you.

They won’t be able to use it as evidence if there’s ever a criminal case.

And the audit would never be available to the public, unless a company waived its right to confidentiality.

Proponents of this law hail it as a sign that industry cares about the environment.

But environmental groups argue the bill does quite the opposite.

Sandy Bahr with the Sierra Club says the new law allows companies to hide pollution and not be held legally liable. 

“There’s a responsibility to follow the law and report violations anyway," she said, "and so to give this tool where they can just hide the information and then not have to be responsible I mean just because they were not paying attention before, they should get this basically “oh everything is just fine, you didn’t do anything wrong, and by the way the public gets to know nothing about it,” That’s totally unreasonable.”

She argues people have a right to know what is potentially harming their health.

But Henry Darwin, the Director of the Department of Environmental Quality, says this new law doesn’t protect companies if they don’t report what they’re supposed to report.

“This is about gathering information that is not otherwise required to be reported to us," he said. "This does not protect information that they’d be required to report to us under a separate law, under a separate rule, or under a permit.”

Industry groups have been lobbying for a law like this for years.

In fact, then-Governor Fife Symington vetoed a bill like this 17 years ago.

The difference though, is that bill contained a provision that granted immunity from criminal prosecution even if the DEQ found the violation itself.

That provision is gone in the current bill.

And Director Darwin calls it an improvement over earlier versions.

Still he says, the Department could not support the bill 100 percent.

The reason is the provision that allows companies to keep information away from the public.

“We believe, I believe in open government and really would have preferred that there be some requirement that disclosures occur under certain circumstances," he said.

Director Darwin would not say whether, despite those deficiencies, he advised the governor to sign it.

Arizona now joins more than a dozen other states, including Colorado, Utah, Oregon and Michigan in putting environmental audit laws on the books.