ARCHIVED REPORTS_LIMITED PHASE II ENVIRONMENTAL SITE ASSESSMENT AND SUMMARY OF PROJECT TO DATE

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1 below the maximum due to the absence of environmental harm' or due to their inability to pay a 2 penalty.23 3 In closing argument Defendants' attorney recounted the history of discharges, 4 emphasizing that after each one there was no new requirement imposed,or that they received no 5 communication. The suggestion that Defendants might have believed themselves to be in 6 compliance rings increasingly hollow with each repetition of discharge and temporary repair. 7 Moreover,evidence that the Regional Board sent notices of violation to Defendants, and that e 8 Kimbroughs live a short distance from the dairy eliminates any possibility that they operated i 9 ignorance of the discharges. 10 B. Liability Pursuant To Health & Safety Code Section 25189.2 11 To prove the unlawful disposal of hazardous waste, the People must prove that: (1)the 12 defendant disposed or caused the disposal of a hazardous waste; (2)the waste disposed of was a 13 hazardous waste; and(3) the hazardous waste was disposed of, either at a site that did not have a 14 permit from the Department of Toxic Substance Control, or at a place which was not authorized 15 by the Department to receive the hazardous waste. (Health & Saf. Code § 25189.2) 16 A substance is a hazardous waste if it poses a substantial present or potential hazard to the 17 environment when improperly managed or disposed of. Health & Safety Code §§ 25117(a), 18 25141(b)(2). The waste in this case was tested in the laboratory. The laboratory results were 19 admitted by stipulation. Exhibit 15. An expert testified that such concentrations are toxic to 20 aquatic life, and harmful to the environment in other ways. 21 The evidence shows that Defendants discharged such waste on at least sixteen occasions 22 during the five years preceding the complaint. [See Attachment 1] The ditches and waterways 23 of San Joaquin County are not licensed hazardous waste disposal sites. The court should 24 impose a $25,000 penalty under Health & Safety Code section 25189.2 for each of the sixteen 25 26 22 . People ex rel. State Air Resources Bd_ v. Wilmshurst (1999)68 Cal.AppAth 1332, 1351. 27 23 . Rich v. Schwab (1998) 63 Ca1.App.4th 303, 817 ($653,000 penalty properly 28 imposed in absence of net worth evidence; legislature determined penalty amount, plaintiff has no duty to show defendant's financial condition). Plaintiff's Post-Trial Brief 15 .