Colorado polluters would be able to avoid fines and keep secret internal investigations of their own environmental wrongdoing under a bill that, after being thwarted in recent years, stands a good chance of passage by the Colorado General Assembly.
The Colorado Association of Commerce and Industry calls the bill a "self-policing" measure; it began lobbying for the measure back in 1989, after small- and medium-sized businesses complained that the state health department was fining them when they voluntarily confessed to breaking the law, says CACI director of government affairs Stan Dempsey. But the bill also has the support of big industry, particularly the Adolph Coors Company, whose officials were angered last summer when the Golden brewer was fined after volunteering that one of its plants was polluting the air.
Under the bill, which is sponsored by Arvada Republican senator Al Meiklejohn, a company coming forward to the Colorado Department of Health to admit to violations would get immunity from being fined. (Coors officials say this bill would have helped them last summer.) Also, companies that do voluntary self-evaluations could keep the results secret, unless ordered by a court to release information to the health department.
Polluters would still be required to report violations to the health department, and failure to do so would open them up to fines. And, Dempsey emphasizes, the health department could still conduct investigations on its own. But environmentalists say the bill's provisions would hamper regulators' ability to investigate.
An earlier incarnation of the bill, also sponsored by Meiklejohn, passed the Senate in 1989 but stalled in the House and died when the session ended. A second try passed the House in 1992, but when Governor Roy Romer threatened to veto the measure, Meiklejohn withdrew the bill.
"The governor had reservations about the immunity [from fines] section," says Romer spokesman Matt Sugar. And while "his concerns have been addressed in the current version" of the bill, Sugar says the governor won't reveal whether or not he plans to veto the measure until it has passed the legislature.
Democratic senator Linda Powers, who opposes the bill, says she doesn't expect any help from the governor's office. "I'm not counting on him vetoing the bill," she says. "It's an election year, and I don't count on elected officials for anything."
Jackie Berardini, an attorney for the health department, says she and other opponents are trying to narrow portions of the bill to apply only to small businesses, and to provide for an independent person who would have access to polluters' self-evaluations and could argue on behalf of the department in court action over their release.
But Powers predicts easy passage of the bill as it's now written. And environmentalists and health officials say they're worried about its impact.
"The bill presents a lot of issues that are very troublesome, and we can't support it as it's written," says Berardini. "There's not enough safeguards so that the privilege is not used as a shield against improving performance and against coming into compliance with environmental laws."
Both Dempsey and the bill's author, Denver attorney Cynthia Goldman, pitch the bill as a measure aimed at small businesses and as a tool to encourage polluters to come to the health department and confess their crimes. But Goldman's husband, Jon, a spokesman for the Adolph Coors Company, says the giant brewer has been supporting the measure since it was originally introduced in 1989.
Last summer, the Colorado Department of Health fined Coors $1.05 million for releasing fifteen times the legal amount of volatile organic compounds into the air. The brewing giant volunteered the information to the health department, and company officials were incensed when they were penalized. The final penalty, however, was whittled down to $237,000.
"We felt there should not have been any fine right from the start," says Jon Goldman.
Among the bill's co-sponsors are such heavyweights as Senate president Tom Norton and House majority leader Tim Foster. Arrayed against them are the health department and several environmentalist groups. The opponents fear that companies with a history of lawbreaking may cram years' worth of violations into an audit in the hopes of avoiding penalties.
Randall Weiner, an attorney for the Land and Water Fund of the Rockies who has been participating in negotiations about the bill between the health department, attorney general's office, governor's staff and CACI, says the bill's "true intent is to provide an economic boom to large businesses at the expense of the environment."
CACI's Dempsey denies it. "Colorado companies do want to do audits, they want to be good corporate citizens, they want to comply with environmental laws," he says. "If they didn't do audits, the alternative would be to sit around and wait for the health department to find them and penalize them."
But companies that keep quiet in the hopes that they won't be caught may wait a long time for the backlogged health department to catch up with them, both Dempsey and Cynthia Goldman acknowledge. "It would be impossible for them to find everyone," she says.