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CWA+Machado+_Porter+Cologne_

CWA+Machado+_Porter+Cologne_ - Page 1 1 of 100 DOCUMENTS...

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Page 1 1 of 100 DOCUMENTS Cited As of: Apr 12, 2008 ROBERT A. MACHADO et al., Plaintiffs and Appellants, v. STATE WATER RE- SOURCES CONTROL BOARD et al., Defendants and Respondents. No. C032572. COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT 90 Cal. App. 4th 720 ; 109 Cal. Rptr. 2d 116 ; 2001 Cal. App. LEXIS 538 ; 2001 Daily Journal DAR 7281 June 15, 2001, Decided NOTICE: Opinion certified for partial publication. * * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II. SUBSEQUENT HISTORY: The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 12, 2001. As Modified July 12, 2001 No Change in Judgment. PRIOR-HISTORY: Appeal from a judgment of the Superior Court of San Joaquin County. Super. Ct. No. CV005802. Carter P. Holly, Judge. COUNSEL: Curtis & Arata, Edgar H. Hayden, Jr., and Matthew R. Berrien for Plaintiffs and Appellants Manuel Borges, Jeanette Borges, Frank V. Borba and Manjean Holsteins. Damrell, Nelson, Schrimp, Pallios & Ladine, Fred A. Silva and Lisa W. Chao for Plaintiffs and Appellants Robert A. Machado, David Machado, Frank Machado, Mabel Machado and Machado & Machado Dairy. Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hacken- bracht, Assistant Attorney General, and Tracy L. Win- sor, Deputy Attorney General, for Defendants and Re- spondents. JUDGES: Opinion by Hull, J., with Sims, Acting P. J., and Raye, J., concurring. OPINION BY: HULL OPINION HULL, J. In this appeal, plaintiffs Robert A. Machado, Dav- id A. Machado, Frank R. Machado, Mabel G. Machado, and Machado & Machado Dairy (collect- ively referred to as the Dairy) challenge the issuance of a cleanup and abatement order. The Regional Water Quality Control Board (RWQCB) issued this order be- cause the Dairy was discharging manure and wastewater into a ditch that flowed into a drainage system and then into the Sacramento-San Joaquin Delta. The Dairy asserts (1) due process required a hear- ing before the cleanup and abatement order could be is- sued, (2) the order was vague and included remedies that exceeded the authority of the RWQCB, and (3) the reports required as part of the cleanup and abatement order threatened the Dairy's right against self-incrimina- tion. The trial court rejected each of these claims and denied the Dairy's petition for writ of mandate. We af- firm. 1 1 This case initially involved similar cleanup and abatement orders directed to two other dair- ies and their owners. However, those dairies have since dismissed their appeals, and this case involves only "Cleanup and Abatement Order No. 98-719," issued to the Machado & Machado Dairy and its owners/operators. FACTS AND PROCEDURAL HISTORY
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Page 2 Discharges into the state's water system are usu - ally regulated through the issuance of waste discharge requirements (WDR's). (See generally Wat. Code, §§ 13260 , 13263 , 13264 [all further undesignated statutory references are to the Water Code].) However, in 1982, the RWQCB waived WDR's for certain types of waste discharges, including confined animal wastes.
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