The state Senate easily approved a bill Tuesday that would allow companies to keep secret environmental audits they conduct of their operations.
Approved on a 20-9 vote, the bill worries environmentalists. The Sierra Club dubs it the "polluter protection act."
Supporters in the mining, utility and other industries say the audits will encourage businesses to search for pollution, particularly historical problems. They say it will particularly encourage smaller companies, and give them time to figure out how to clean up pollution cost-effectively.
• Audits would be privileged and not admissible as evidence in civil court or government administrative proceedings. Someone producing the audit couldn't be compelled to testify about it.
• A state official couldn't request or review an audit during an inspection. If a company voluntarily gave the report to an official, the official could be guilty of a misdemeanor if he discloses the audit under certain circumstances.
• Unlike a similar bill that passed the Legislature in 1995 and was vetoed by Fife Symington, then governor, this bill wouldn't give anyone immunity from criminal prosecution or lawsuits.
Henry Darwin, Arizona Department of Environmental Quality director whose agency is neutral on the bill, said it would protect people producing audits from prosecution for violations because of the secrecy.
"The basic crux of the bill, if a company does an environmental audit on its own and they find violations, those violations and that report don't need to be disclosed to this agency," Darwin said. "If we were to pursue enforcement action, it would have to be based on violations we found on our own."
But Darwin finds good points, too.
"In my view, it creates an incentive for companies to do these audits," he said. "We believe that offering that privilege is a justified incentive."
The Sierra Club's Sandy Bahr, however, testified in a committee hearing last month that she has never seen an occasion where secrecy promotes compliance.
"We're very supportive of programs where entities do an audit and find a problem and develop a plan for correcting a problem and then they receive reduced penalties or a waiver of penalties. Keeping information secret … will reward bad actors, undermine confidence in agencies and frankly the companies themselves that are polluting.
"What if you are a neighboring company, and you've got somebody next door who has huge issues and is part of somebody's audit, but none of that information is going to be public or available to be used to help push for compliance? One of the basic things for having an effective, accountable government is the right to know," Bahr continued.
David Kimball, a Phoenix attorney and lobbyist for mining and other industries, said many other states have adopted similar laws because current laws don't require companies to discover environmental problems on their properties that they didn't cause.
"How in the world do you encourage smaller companies to try to work with an agency, discover problems and improve our environmental conditions?" Kimball said. "You've got to give them some kind of incentive.
"These current requirements … I've seen case law that shows the failure to report a problem 15 minutes after you know about them is a violation with a $250,000 to $500,000 penalty," he said.
The bill has already passed the House but needs another House vote because it was amended in the Senate.
Contact reporter Tony Davis at firstname.lastname@example.org or 806-7746.