CHAPTER 8 STATE CONSTRAINTS ON CONTAMINATION OF GROUND WATER IN ARIZONA

• Jurisdiction: United States

Ground Water Contamination
(May 1991)
CHAPTER 8
STATE CONSTRAINTS ON CONTAMINATION OF GROUND WATER IN ARIZONA
Fennemore Craig, P.C.
Rolf R. Von Oppenfeld and Scott H. Thomas
Phoenix, Arizona

INTRODUCTION: THE HISTORICAL BACKGROUND OF ARIZONA'S ATTEMPTS TO LIMIT GROUND WATER CONTAMINATION

Ground water quality protection has been a significant legal issue in Arizona since the 1970s. Efforts to develop a ground water quality protection program began in the late 1970s and early 1980s. The limited statutory framework in the 1970s for control of ground water contamination was far from a model of clarity and unambiguous authority.

The state's ability to develop an effective ground water quality protection program under Arizona's initial statutory program, the Water Pollution Control Act (the "WPCA")¹ , was suspect, to say the least. One significant concern was with the equivocal delineation of authority between two separate entities responsible for enforcing the WPCA, the Water Quality Control Council (the "Council") and the Department of Health Services ("DHS"). Prior to 1986, both of these entities had some jurisdiction over water quality, with the boundaries of that jurisdiction ill-defined. The Council had no staff of its own, and the staff from the Division of Environmental Health Services within DHS served the Council's needs. As a result, there was uncertainty over the jurisdiction to be exercised by the Council and that to be exercised by the Director of DHS over water quality matters. On this issue, the Arizona Attorney General stated that the WPCA was ambiguous and that "it warrants legislative clarification."²

A key legal dispute throughout the late 1970s and well into the 1980s was whether DHS (through either its Director or through the Council) even was authorized to adopt a permit or approval program to regulate the disposal of wastes or pollutants into ground water from point or nonpoint sources. This was compounded by the ambiguity in the WPCA as to whether the Director of DHS or the Council should administer ground water quality permit and approval programs.

In 1984, the Council adopted ground water quality standards after several years of negotiations with interested parties.³ Reflecting Arizona's interest in protection of ground water supplies, the goal of these strictly narrative standards was to maintain quality at levels protective of public health and current and projected uses while recognizing limitations imposed by technology.⁴ The narrative standards prohibited pollutant discharge and disposal that caused public health hazards, that impaired past, present or future uses of ground water, or that caused toxic substance concentrations that posed hazards to public

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health or impaired foreseeable uses.⁵

The dispute continued, however, over which agency had authority to adopt a permit program to enforce these standards. The Director of DHS finally decided to exercise jurisdiction by adopting a water quality permit program in 1984. The Groundwater Quality Protection Permit Program, aimed at minimizing and correcting damage to the physical, chemical and biological character of ground water, was officially promulgated on July 20, 1984 by DHS.⁶

Shortly after the Groundwater Quality Protection Permit regulations were issued, litigation ensued over their scope and validity. Among the issues litigated were the Director's authority over point and nonpoint source discharges to ground water. On May 2, 1985, DHS and other defendants in litigation brought by the Arizona Chamber of Commerce entered into the following stipulation regarding the applicability of these regulations to "nonpoint sources":

Defendants, as a matter of policy, rather than as a matter of law, will not apply Notice of Disposal requirements under the regulations to nonpoint sources of pollution without further rule making proceedings. A "nonpoint source" of pollution is a source that is not a "point source" within the meaning of A.R.S. § 36-1851(11).

The litigation continued with respect to DHS' authority and procedures used to implement the fledgling Groundwater Quality Protection Permit Program, and DHS received a favorable decision from the trial court. Plans to appeal by the Chamber of Commerce left continuing questions with respect to the validity of this DHS-administered program.

The litigation, combined with continuing concerns over ground water quality, resulted in several legislative proposals in 1985. Ground water protection bills were advanced by various interests, but a deadlock developed between these various interest groups. Much press attention was devoted to the issues of ground water protection legislation and the ongoing litigation.

As a result of this political pressure, the 1986 legislative session was fully expected to focus on development of ground water protection legislation. The likelihood that a ground water protection bill would pass the Legislature in 1986 was greatly enhanced, however, because of the impetus provided by the Common Cause Initiative, known as the Arizona Clean Water Pesticide Control Act. That Initiative was scheduled to be placed on the ballot in November, 1986.

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The Common Cause Initiative was a comprehensive water quality management program proposed for the ballot for the 1986 general election, in reaction to the Legislature's seeming inability to reach a consensus on this issue. The Common Cause Initiative proposed: (a) to prohibit any person, facility, or activity from discharging, intentionally or accidentally, any substance to the ground or into the waters of the State and any construction, operation, or modification of any structure without a water quality permit; (b) to grant DHS broad authority to establish water quality standards, vadose zone standards, pretreatment standards, toxicity standards, and cleanup and remedy standards, all by administrative order without public notice or comment; (c) to consolidate all standard-setting, rule-making, administration, enforcement, and appellate review authority over water quality in DHS (thereby abolishing the conflict with the Council); (d) to create administrative penalties of $10,000 per day per violation, increase civil penalties to $25,000 per day per violation, and increase criminal penalties to $1,000,000 per day per violation for corporations, $150,000 per day per violation for individuals, and four years imprisonment; (e) to eliminate permit compliance as a defense; and (f) to authorize citizen suits for any alleged violation of a permit, regulation, or statute.

Although broad in scope, the Initiative had several problems and quickly drew criticism. It served its intended purpose, however, by forcing all sides of the debate to focus on the issue. The Initiative's lack of appeal for many interest groups eventually united these groups in 1986 in a commitment to find a compromise substitute.

The primary alternative bill to the Initiative was the Arizona Water Quality Protection and Restoration Act, also known as the Hawke Bill. It was known as the Hawke Bill because it was prepared by a committee under the leadership of Representative Larry Hawke (Republican) of Tucson. Representative Hawke had taken a great interest in the development of ground water protection legislation due to the keen interest of his Tucson constituency on this subject. In 1985, he had chaired the Joint Interim Committee on the topic of ground water protection, with the ultimate goal of developing legislation on this subject. A deadlock developed and no legislation was passed. Therefore, in the fall of 1985, at the request of Representative Hawke, an ad hoc committee was formed to develop compromise language on ground water protection. This working group included some industry representatives and members of several environmental public interest groups.

In January, 1986, Governor Bruce Babbitt appointed a negotiating panel of legislators, environmentalists, and business representatives to work on refinement of draft water quality legislation and to develop a final bill that would be acceptable to all sides. He made passage of this legislation one of his top priorities. Many political observers believed Mr. Babbitt's presidential ambitions also would be enhanced by such an effort.

Mr. Babbitt served as the panel's chairman. The group's

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other original members were:

Senate Majority Leader Robert Usdane

House Majority Leader Burton Barr

Senate Minority Leader Alfredo Gutierrez

Sen. John Hays, R-Yarnell

Sen. Greg Lunn, R-Tucson

Sen. Ed Sawyer, D-Safford

Rep. Larry Hawke, R-Tucson

Rep. David Bartlett, D-Tucson

Rep. James Hartdegen, R-Casa Grande

Rep. Henry Evans, D-Tolleson

Pat Cantelme (Central Arizona Labor Council)

Jack Pfister (Salt River Project)

Roger Manning (Arizona Municipal Water Users Association)

Priscilla Robinson (Southwest Environmental Center)

David Baron (Center For Law In the Public Interest)

Phoenix attorney Jim Bush (currently with Fennemore Craig)

Jim Lincicome (Motorola)

Bob Moore (Agri-Business Council)

Later, the group evolved and became more "ad hoc" as additional participants either joined the group or substituted for those originally appointed by Governor Babbitt. The political process that led to this diverse group of interests working together on such far-reaching legislation was unusual, paralleled perhaps only by the process that resulted in the 1980 Groundwater Management Act to manage ground water withdrawals.

At the first meeting of the Governor's newly formed 19-member Water Quality Panel, Charles Anders, then Director of the Environmental Health Services Division within DHS, presented an outline comparing the positions of the present law, the Hawke bill, the 1986 DHS position, and the Initiative. The long process to hammer out a legislative compromise then began. It culminated four months later, when the Arizona Environmental Quality Act (the "EQA")...