By Ed Runyan
In a small-town courthouse here, former water-department operator James V. Bates is scheduled to go on trial Nov. 6 on charges he failed to timely notify Sebring water customers of excessive amounts of lead in their drinking water.
If his attorney, John Juhasz, has his way, however, the Ohio Environmental Protection Agency also will be on trial.
The January 2016 Sebring water crisis, which came on the heels of the even bigger Flint, Mich., lead-in-the-water crisis, received national attention.
Of the OEPA, one recent filing by Juhasz claims the agency “wants to hang the label on Bates that he recklessly took too long [to notify the public] when he was waiting on paper pushers who were not pushing papers under the time lines they themselves devised.”
Juhasz has filed motions asking that the errors of the OEPA, the agency that regulates water departments, be part of the trial.
While Bates was charged criminally for his actions in 2015 and early 2016, the OEPA also came under fire in January 2016 for lax oversight.
The OEPA fired two of its employees and demoted a third in February 2016 in response.
In April 2017, Juhasz asked Judge Diane Vettori of Mahoning County Area Court in Sebring to require prosecutors from the Ohio Attorney General’s Office to turn over files relating to disciplinary actions taken against the three state employees.
Prosecutors provided some information, Juhasz said in a filing, but they also asked Judge Vettori to suppress that evidence from trial. She has yet to rule on the motion or several others.
On Thursday, prosecutors and Juhasz met with the judge in chambers to discuss the motions, but the only publicly provided information was that there are no further hearings planned, and the trial will go forward.
There is a chance the parties will resolve the case in a negotiated plea agreement before trial, however, a court official said.
In an April 18 filing, Juhasz said Bates does not believe he broke the law when he missed deadlines for notifying water customers because he was waiting for an OEPA official to provide assurances the notifications were correct before he sent them.
A September filing mentions various steps Juhasz alleges the OEPA performed improperly, but it doesn’t spell out how the steps affected Bates.
The filing said in order to show Bates’ actions were reasonable, his attorney needs access to the OEPA internal investigation. Prosecutors didn’t provide such information initially, Juhasz said.
Bates believes he has been made a “scapegoat” by state officials for the Sebring water crisis, and he “has the absolute right to demonstrate that to a jury,” Juhasz said in the filing.
Prosecutors filed a brief in April stating issues relating to discipline taken against OEPA employees are “irrelevant” to Bates’ guilt or innocence.
Furthermore, the danger is great jurors would be misled by information about OEPA employees because it likely would cause the jury to “focus its fact-finding role” on the EPA internal review rather than on “the relevant issues.”
The filing says the three OEPA employees who were disciplined did not “have direct contact” with Bates during the time period of the lead problem.
Juhasz responded in a Sept. 1 motion that discussed the role of OEPA employees.
A February 2016 OEPA news release said OEPA Columbus employee Kenneth Baughman was fired because he failed to ensure that Sebring testing data were provided to the Richfield field office to help them conduct their review of Sebring’s lead issues.
Another OEPA employee, Nancy Rice, a manager in the Twinsburg office, was demoted for not “elevating” the Sebring issue to OEPA management in Columbus when the OEPA Richfield office took action against the village Dec. 3, 2016, regarding the lead issue, the news release says.
Rice is captured on a voicemail to Bates saying the Flint crisis had put her agency and Bates under a “miscroscope,” a filing says.
“Bates’ evidence at trial will show that [Bates] was waiting for the EPA as he was instructed to do – a crucial point when the government claims he acted recklessly,” Juhasz said.
A filing by prosecutors says Bates told an OEPA official Jan. 27, 2016, that Bates had told an OEPA inspector Sept. 24, 2015, that a third set of drinking-water tests indicated high lead levels in the water.
The next day, the inspector sent Bates an email that included an internet link to steps Bates should take regarding notifications to the public, the filing says.
The inspector followed up Dec. 3 with a letter saying Bates should have sent notifications to all water customers by Nov. 29. The inspector sent a second notification of that type Jan. 15, the filing says.
At the time, Bates had 60 days from late September to send the notifications. In 2016, the Ohio Legislature reduced the notification deadline to two days.