U.S. Inquiry Into Spill Puts City on Short List

THOUSAND OAKS —  If city officials here have any question what to expect from a federal criminal probe into February’s massive sewer spill, they need only call San Bernardino for the firsthand scoop.

They would hear of the drop in employee morale. The tension as workers are called to Los Angeles to face a federal grand jury. The lingering stigma of the federal investigation hanging over their heads three years after a series of wintertime spills.

“I feel sorry for them,” said Stacey Aldstadt, deputy general manager of the San Bernardino Municipal Water Department, still the subject of a federal criminal investigation for three 1995 spills. “You’re held responsible for just doing your job. You’re raided by the FBI and threatened with going to jail. . . . It’s scary.”

Truth be told, Thousand Oaks and San Bernardino are among the slender ranks of cities that may face federal criminal prosecution for alleged violations of the Clean Water Act.

Both bear the distinction of having spills worthy of the federal prosecutors’ attention: Thousand Oaks, presumably, for the sheer size of February’s spill--86 million gallons of untreated waste--and the fact the burst pipeline was scheduled for replacement but stalled by political infighting.

While San Bernardino’s spills were much smaller--possibly releasing up to 4.5 million gallons of raw sewage--investigators suspect one or more employees may have tried to cover up or downplay the event--an allegation city officials deny.

Representatives from the U.S. attorney’s office, federal Department of Justice and the Environmental Protection Agency would not comment on either case, saying only that they remain open. State regulators are also looking into the spills.

Possible criminal penalties include massive fines and possible jail time if any person--elected or hired--is found liable for the spills. Or the cases could be dropped for lack of evidence.

Enforcement Against Agencies Stepped Up

While statistics on Clean Water Act prosecutions involving municipalities are hard to come by, some attorneys who make their living defending sewer plant operators worry that enforcement against public agencies--such as those in Thousand Oaks and San Bernardino--is being stepped up.

“Because of the very low standards traditionally applied to environmental cases, there is a vast gray area between civil intent and criminal intent,” said Thomas R. Bartman, a former Justice Department attorney who now defends companies in environmental lawsuits. “With the sexiness of environmental crimes, more cases will be prosecuted criminally than have been done in the past.”

Not so fast, Justice Department officials counter.

There is no initiative to target cities, counties and other local governments for environmental crimes, said William W. Carter, an assistant U.S. attorney for the Los Angeles area. But Carter’s boss, Nora M. Manella, has devoted additional resources to pursuing environmental cases, some of which affect other levels of government.

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The law in question for San Bernardino and Thousand Oaks is the Clean Water Act, enacted in 1972 as environmentalism grew in the country and while the memory of the flaming Cuyahoga River in Cleveland was still fresh.

For environmental legislation, it is a remarkably clear document, despite the whereases and the discussions of “non-point sources.”

The gist: Thou shalt not pollute without a permit.

The factors that make a Clean Water Act case criminal rather than civil have nothing to do with whether the polluter is a city, a waste water treatment district or a poultry processing plant, the Justice Department’s environmental crimes chief said.

What matters are the circumstances surrounding the spill and whether it was intentional or someone involved was negligent.

“I don’t think it’s particularly useful to focus on whether it involves a municipal or a private actor--we apply the law equally to everyone,” said Steve Solow, chief of the Justice Department’s environmental crimes section. “We don’t really look at private versus municipal as being the controlling factor. The question is what was done.”

In fact, Justice Department officials say, in their tracking of environmental crimes, there are no breakdowns of municipal convictions as opposed to private industry convictions.

Solow said about 25 municipal sewer plant operators--in states from West Virginia to Washington to Hawaii--have been convicted of criminal Clean Water Act violations in recent years. Officials do not tally the number of criminal investigations where charges are not filed.

Criminal Referral Totals Up Since ’90

With the Environmental Protection Agency hiring about 200 investigators since 1990, however, total criminal referrals to the Justice Department--including public and private defendants--have grown from 65 to 262.

“Rather than seeing some changes in the way we charge cases, I think it’s more accurate to say we’re now doing a better job of finding criminal behavior,” Solow said.

Typically, criminal penalties are reserved for the “truly hellacious spills,” attorney Bartman said, or else spills that involve some shadowy figure opening a valve in the dead of night, intentionally dumping waste and concealing it.

If someone specific is to blame, he or she will be singled out, said Lori Dueker, the special agent in charge of the EPA’s criminal investigations division in San Francisco.

“You always look for the person or individuals that are making the decisions,” she said. “In a criminal case, you don’t look for the person who’s following orders. You’re looking for the someone who is ultimately making the decisions. That could include elected leaders.”

The classic example of a criminal case involving a municipality comes from Honolulu.

That is where, over a five-year period, sewage was dumped or overflowed hundreds of times onto pristine beaches and into streams. In a 1994 settlement, the city and county of Honolulu were ordered to pay federal and state agencies $1.2 million and spend up to $30 million on waste-water recycling.

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But that situation barely resembles what took place in the local cases--where spills occurred during big storms, which strain sewer systems to their limits. Particularly in Thousand Oaks, rains washed out a 30-foot section of sewer line during the wettest February recorded in county history.

What happened in Thousand Oaks, city officials say, was not criminal, intentional or negligent. It was, they say, an act of God.

To make that point succinctly, Thousand Oaks has hired one of Manella’s predecessors, former U.S. attorney and federal drug czar Robert Bonner. For their services, Bonner and his partners will receive as much as $275,000.

Complicating the case, the sewer main that burst Feb. 3 was on a list of long-term capital improvements for more than a decade without being replaced. For two years of that period, the replacement project was tied up while council members fought over the size of a $75-million sewer-plant upgrade and who should pay for it.

Throughout those debates, city public works officials warned that a major spill could occur if the sewer lines were not replaced.

Articles on a Spill May Trigger a Probe

The upgrade was eventually approved in its original form last year--but not in time to finish replacing the line before the El Nino-driven storms. The burst pipeline is scheduled for replacement this summer.

Newspaper articles detailing the extent of the spill--and the events leading to it--were what caught investigators’ eyes in Thousand Oaks, sources say.

That is not uncommon, Bartman believes.

“If there’s one of those hellacious spills and someone on the staff of the U.S. attorney’s office or the EPA reads it in the newspaper, they think, ‘Heck, we’ve got to look into this. There’s a lot of public credibility to be reaped by an active response, and maybe there is a big problem,’ ” he said. “They simply fire off information requests from the target agencies.”

Just last month, Thousand Oaks began providing some of the scores of subpoenaed documents to the U.S. attorney’s office.

In all likelihood, the process is just beginning. Federal probes can span months, and, as San Bernardino officials can attest, years.

The San Bernardino probe has been going on for two years now, Aldstadt said. It’s been a year since any employees were called down to the grand jury. Still no word, other than that the case is still open.

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No one knows what is being made of the 85,000 pages of documents and two computer hard drives subpoenaed a couple of years ago.

With each passing day, employees wait and hope.

“There’s this element of fear over everyone who works here. People are totally, totally scared. . . . We haven’t heard anything concrete, so you try not to stick your head above the line of fire.”

The not knowing adds to employee angst, she said.

“Enforcement is a very private thing,” said attorney Christopher M. Westhoff, vice chairman of the Assn. of Metro Sewerage Agencies’ legal affairs committee. “They aren’t going to let you know what they’re going to do until they’re good and ready. They don’t come knocking at your door to tell you what the enforcement situation is.”