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People v. Hale9/28/1994
SILLS, P.J.:
SW-846 is not the name of some new gasoline additive marketed by an oil company. It is the title of a manual compiled by the United States Environmental Protection Agency (EPA) dealing with the collection and testing of hazardous waste. The former plant manager of an Anaheim paint manufacturing company, Marion Hale, was convicted under state law of five counts of putting hazardous waste mixed with sawdust into a dumpster, the contents of which were destined for a landfill not authorized to accept hazardous waste. The proof of four of those counts involved evidence based on test samples, the gathering of which did not conform with certain procedures prescribed by SW-846. As we shall now explain, the evidence was properly admitted. California's hazardous waste control law does not require rigid adherence to the EPA manual, and the deviation from the manual's procedures in this case was substantively harmless.
I
In the mid-1980's, Hale rose to be the plant manager of W.C. Richards Company, a paint manufacturer. By the late 1980's, the smell emanating from the waste put into the company's trash bins was so bad that the trash truck driver would get "high" after making a pickup when he entered the truck to clean it at the completion of his route. Occasionally, paint would spill out of the trash bins onto the dump truck. The driver noted that once the trash was pressed inside the truck, a wet paint-smelling liquid would leak out of the truck.
On April 3, 1990, an anonymous phone call tipped off the Anaheim Fire Department about the waste disposal practices at the company. Within eight days, on April 11, 1990, a fire marshall arranged for the company's trash to be collected in a clean and empty truck. After the collection, the fire marshall smelled a strong solvent odor and called the Orange County Health Department.
A hazardous waste specialist and his assistant arrived, and "suited up" to collect the waste from the truck. The specialist used a "pile core sampler," free of other contaminants, to obtain a sample. He took a duplicate sample for the company to test. He placed the sample in a freezer and later delivered it to a lab to be tested for chlorinated hydrocarbons, volatile compounds and heavy metals.
The next day, April 12, the fire marshall and an assistant staked out the paint firm in a parked van equipped with a periscope about 30 feet away from the northeast section of the plant. The fire marshall saw two men mixing a semi-solid gelatinous material with sawdust in a bin. She also saw them pour a liquid type material from several 55-gallon steel drums into the bin. Hale appeared several times during the morning to supervise the process; at one point the fire marshall was overcome by the smell of solvent. Around 9:30 a.m. the contents of the bin were shoveled into a nearby dumpster.
The fire marshall then arranged for the trash company to pick up the dumpster with another empty truck. After the pick up and the return of the truck, the county hazardous waste specialist collected the waste in the same manner as the previous day.
The fire marshall returned on April 16, again observed the mixing of solvent and sawdust, and again had the trash disposal company pick up the waste with an empty truck. The county hazardous waste specialist collected this day's samples very quickly because of the confined space, limited air, and the uncertainty of the substances involved.
The county specialist obtained a search warrant and went directly to the paint firm the next day, April 17. Hale was on vacation at the time. The county specialist went to the mixing bin, but in the process of collecting t
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