Water District’s Toxic Spill: Is It a Felony or a Misdemeanor?

On an October morning more than 1 1/2 years ago, six cyclists were pedaling through Chino Hills State Park when they splashed through harmless-looking pools of liquid on a bike trail.

Soon, the men’s skin started blistering. The caustic liquid ate through their clothes, pitted their mountain bike frames and tires, and left festering burns on their legs and backs.

The source of the chemical--a Yorba Linda treatment plant operated by the Metropolitan Water District of Southern California--was tracked down almost immediately, and criminal charges were filed quickly by the Orange County district attorney’s office.

But 16 months after the landmark case was filed against the giant water agency, it is still mired in a complex and unusual legal process.

The case is precedent-setting, since it is the first time a public agency has faced felony criminal charges for violating a major California environmental law that prohibits release of toxic chemicals into waterways.

The case got bogged down in December, when Orange County Municipal Judge Daniel T. Brice ruled after a preliminary hearing that the water district, which spilled several hundred gallons of highly concentrated sodium hydroxide into a creek that runs through the park, should not face a felony. Instead, he reduced the charge to a misdemeanor.

At the time, Brice said he believed that it was “inappropriate for any public entity to be held on a felony” under the state’s water-pollution law, although he told the prosecutor in court that he could be “absolutely wrong” since he was largely inexperienced with environmental law.

Now, prosecutors are taking the unusual step of asking the judge to change his ruling and dismiss the case so that they can start over and refile it as a felony.

If that occurs, then the long process of presenting evidence in a preliminary hearing must be repeated. The original hearing lasted six days.

“This process is quite convoluted,” said Deputy Dist. Atty. David S. Kirkpatrick, who is prosecuting the case. “We wanted a felony, but a judge didn’t think it was a felony and wanted a misdemeanor. I think that is fairly rare. I’ve never seen it before in 6 1/2, almost 7 years here.”

If Brice does not dismiss the case, the district attorney’s office will consider filing an appeal, Kirkpatrick said.

The water district’s defense attorney, Marshall M. Schulman, declined to comment, saying only that the prosecution has shown “no new reasons” for the judge to reconsider his ruling.

Top officials with the Los Angeles-based water agency have admitted responsibility for the spill, which occurred during three days in October, 1989. But they say it was unintentional, and they quickly made repairs that cost about $500,000.

State water-quality officials, however, say that more than negligence was involved. They are upset that the agency had operated a system at the Yorba Linda plant for over 25 years that was designed to pump the chemical into the public park whenever pressure built up in a pipeline.

Such a plumbing system has been illegal for about 20 years, and was discovered only after the spill, according to officials with the Santa Ana Regional Water Quality Control Board who investigated the incident.

Although chemical-dumping cases are commonplace in Orange County, rarely are they severe enough to immediately inflict bodily injury on people. The district already has paid a $10,000 civil fine to the water board and several thousand dollars in claims to the cyclists to cover medical expenses and damaged equipment.

Kirkpatrick said he believes that the felony charges are worth fighting for.

Felony charges carry more of a stigma, which prosecutors say is important to deter toxic polluters. Also, the fines are more severe, as high as $1 million, compared to a maximum of $25,000 per day for the three-day spill under misdemeanor charges.

The water district, which serves 15 million Southern Californians, has several billion dollars in assets.

Schulman has argued in court that all charges should be dismissed. He said that the discharge system was an emergency one that was never intended to be used and that charging the agency for the spill is like holding the National Aeronautical and Space Administration engineers criminally responsible for the space shuttle Challenger tragedy.