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

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I and 1998 discharges. Those findings were never challenged, and are fin d and 2 unreviewable under the exhaustion doctrine and by statute.' 3 23. The Regional Board found that Joe J.Machado and Lillian E.Machado are"dischargers" 4 at this facility. The Regional Board took action based on the Machado's"acts,or failure 5 to act".' That finding was never challenged, and is therefore final and unreviewable 6 under the exhaustion doctrine and by statute.' 7 24. The observed discharges often lasted for several days or weeks. Witnesses Randy 8 Severson, Louis Pratt, and Mr. Sarabijt Atwal testified regarding multi-day discharges 9 on separate occasions. The longstanding nature of the overflow was corroborated by 10 Joanne Kimbrough's testimony that the unusual run on in 1998 lasted for threeweeks.' 11 25. The Defendants did not hire an engineer to advise them regarding improvements,aj id did 12 not use construction professionals to create a berm of uniform height or compaction. 13 26. After the winter of 1998,the Defendants did attempt to improve the pond berms d add 14 berms on the property perimeter. The sum spent was approximately$10,000 an i was 15 paid for by Joe J.Machado. The 1998 contractor could not work on all four sides of the 16 pond [Exhibit 27], and in any event did no work which could not have been done in 17 previous years. The Defendants eschewed any expert advice or engineering on the 18 project" 19 20 5 The Kimbroughs petitioned for a writ of mandate vacating the order based as erted constitutional defects. After remand and an evidentiary hearing,the Regional Board re- 21 affirmed the Cleanup and Abatement Order. See Exhibit 66. 22 6 See, generally, Abelliera v. Dist. Ct. (1941) 17 Ca1.2d 280, 292 (exhaustion doctrine); Water Code §13330(c) (unchallenged findings "shall not be subject to review by any 23 court'. 24 ' Cleanup &Abatement Order No. 98-721, attached to Complaint as Exhibit A. 25 s See note 6,supra. 26 ' The Kimbroughs carefully denied any escape of waste from the pond in 1998. Id light 27 of the many disinterested witnesses who saw discharges from thepond flood their Fields, homes, and the intersection, the Court does not credit the Kimbroughs' testimony. • 28 10 Two Kleinfelder employees testified that their only work was in response to a Regional Board Order requiring a calculation, and to prepare for litigation. 6