Judge Won’t Treat MWD Chemical Spill as Felony

A municipal judge ruled Thursday that the Metropolitan Water District of Southern California cannot face felony charges for a chemical spill in Yorba Linda that inflicted second-degree burns on six bicyclists in a state park last year.

In a major blow to the prosecution and a controversial decision that could have ramifications statewide, Judge Daniel T. Brice ruled that public agencies cannot stand trial for felonies under a major state environmental law. He added that even if they could, there was insufficient evidence in this case to warrant any felony charges.

Instead, the judge ordered the Los Angeles-based agency to stand trial on Feb. 6 on three misdemeanor criminal counts. The district, which is the world’s largest water supplier, imports water for 15 million Southern Californians.

“I believe it would be inappropriate for any public entity within the state of California to be held on a felony” under environmental law, said Brice, who made his ruling after a six-day preliminary hearing.

From Oct. 26 through Oct. 28, 1989, at least 466 gallons of extremely concentrated sodium hydroxide spilled from the water district’s Diemer Filtration Plant in Yorba Linda into Telegraph Creek, which runs through Chino Hills State Park, according to a report by the Santa Ana Regional Water Quality Control Board.

The spill, undetected by the water agency for almost three days, crossed a public bike path. Six cyclists said they suffered blistering burns on their legs, backs and other body parts, and their mountain bikes, clothing and tires were pitted and burned.

The case against the Metropolitan Water District is believed to be the first time in the nation a public entity has faced criminal charges of violating water-pollution laws. Most cases against polluters involve civil allegations.

The judge’s decision was disputed Thursday by top state officials and attorneys who wrote and enforce the state’s water-pollution law, which prohibits discharge of toxic chemicals into waterways.

Prosecutors and water-quality officials allege that the MWD operated an illegal chemical system at the Diemer plant designed to discharge a caustic chemical into the park if there was a pressure buildup in a pipeline.

Deputy Dist. Atty. Michael J. Pear said felony charges were justified because the chemical was extremely dangerous, people were hurt and there is evidence that the district knew of the risk posed by the plant’s plumbing system and did nothing to resolve it.

“This spill was inevitable,” Pear said. “By design, (the system) washes into Telegraph Creek. . . . They knew it was designed that way. They had warnings of the problem.”

Pear said he believes that the judge’s decision is wrong and will decide within 10 days whether to appeal.

Marshall Schulman, the MWD’s defense attorney, said he would fight to have the misdemeanor charges dropped too.

“I don’t think they should be prosecuted for anything. That is the bottom line,” he said, adding that the spill was an “unintentional act.”

Without felony charges, the agency faces a much lighter fine and less of a public stigma, prosecutors and environmental officials said. The maximum fine for each misdemeanor is $25,000 per day, or a total of $75,000 for the three-day spill, Pear said. That compares with a possible $1-million fine under a felony charge, which requires proof that a crime was knowingly committed.

“I’m disappointed,” said Bruce Paine, a senior engineer at the Regional Water Quality Control Board, who investigated the case. “It’s a dramatic difference in the maximum liability. It certainly is not as strong a message as the potential of a $1-million fine.”

The decision calls into question whether the state water-pollution law allows any public agency--whether it’s a city, a sanitation agency or the military--to be convicted of a felony if it disposes of dangerous chemicals illegally.

Brice said he interprets the state Water Code to mean that public agencies are not liable for felonies, only misdemeanors.

But he added that much of environmental law is untried, and he was previously unacquainted with the law, so “I could be absolutely wrong and counsel may want to litigate further” in a higher court.

Andrew Sawyer, assistant chief counsel of the state Water Resources Control Board in Sacramento, called the judge’s interpretation “absolutely wrong.”

“I wrote that section of the Water Code and it was clearly intended to apply wherever the federal Clean Water Act applies, including public entities,” he said.

Prosecutors stress that the decision was made by a low court and it carries no legal precedent. But environmental attorneys and water-quality officials worry that it might discourage prosecutors from filing similar felony charges in the future.

“Municipal Court rulings are never binding, but that doesn’t mean this ruling might not work its way up in the courts,” said David Roe, senior attorney with the Environmental Defense Fund in San Francisco. “Someone might want to clear this up and get a definitive ruling.”

Kurt Berchtold, second in command at the Regional Water Quality Control Board, which enforces water-pollution laws, said the ruling “certainly doesn’t encourage” felony cases against governmental or public groups. His agency had always assumed such agencies were not immune.

The system that discharged into the creek had operated at the Diemer plant since it was designed by the MWD in the early 1960s. Water-quality officials say such a system has been illegal for about 20 years, and they expressed shock when they discovered it.

Top MWD officials said in a newspaper interview earlier this year that they were aware the system was illegal and could spill into the park, but they hadn’t gotten around to correcting it until after the spill. They said they didn’t think the public would be hurt.

The criminal case comes at a time when the water agency has been trying to show the public it is environmentally conscious. It wants to import more Northern California water to the south, a move fought by environmentalists because of the effect on wildlife.

“That was the one thing MWD was doing everything in its power to avoid--being charged and certainly being convicted of a felony. They didn’t want this stigma,” Paine said.

Schulman, the defense attorney, said the system that discharged into the creek “was never expected to be used at all,” calling it “a life insurance policy” to be used only if pressure built up.

He compared charging the district with a felony to holding engineers criminally responsible for the shuttle Challenger’s disaster or an airline crash.

“It’s not something they anticipated. If they had known, it would have been noted, it would have been stopped,” Schulman said in court Thursday.

Four top Metropolitan Water District officials also face misdemeanor charges to be heard in a separate preliminary hearing next month. They are Carl Boronkay, general manager; Paul Singer, chief of operations; Lupe Castro, assistant area superintendent at the Diemer plant; and Rich Atkins, plant operations supervisor at Diemer.