People v. THORO PROD. CO.

• Decision Date: 29 March 2001
• Docket Number: No. 99CA1365.,99CA1365.
• Citation: 45 P.3d 737
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. THORO PRODUCTS COMPANY, Inc., a Colorado corporation, and Richard E. Newman, Defendants-Appellants.
• Court: Colorado Court of Appeals

45 P.3d 737

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. THORO PRODUCTS COMPANY, Inc., a Colorado corporation, and Richard E. Newman, Defendants-Appellants.

No. 99CA1365.

Colorado Court of Appeals, Div. II.

March 29, 2001.

As Modified on Denial of Rehearing May 17, 2001.

Certiorari Granted April 29, 2002.

Ken Salazar, Attorney General, Robert M. Russel, Assistant Solicitor General, Dennis Hall, Special Assistant Attorney General, Eric Nelson, Special Assistant Attorney General, Nancy Bauer Egelhoff, Special Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Horowitz & Wake, Jay S. Horowitz, Robert T. Fishman, Denver, CO, for Defendants-Appellants.

Opinion by Judge CASEBOLT.

Defendants, Thoro Products Company, Inc. (Thoro) and its president, Richard E. Newman, appeal the judgments of conviction and sentences entered upon jury verdicts finding them guilty of disposal and storage of hazardous waste without a permit in violation of the Hazardous Waste Act, § 25-15-310(1)(b), C.R.S.2000. Thoro also appeals its conviction for criminal mischief and the corresponding sentence. We affirm in part, reverse in part, and remand with directions.

Thoro began storing chlorinated solvents manufactured by others in the late 1960's. Defendants admitted that hazardous solvents had leaked or spilled during their handling in the 1970's when the products were transferred from railcars to Thoro's storage tanks, and from those tanks to tank trucks dispatched by customers of the solvent manufacturer. In 1985, Thoro ceased handling and storing the products.

State officials received a complaint from an adjacent property owner and commenced their investigation in 1996. During that investigation, officials discovered that chlorinated solvents were present in water wells located on property adjacent to Thoro's plant. They also discovered that Thoro had stored two 55 gallon drums containing a mixture of hazardous chemicals without obtaining the necessary permit.

Following defendants' indictment in September 1997, the conviction at issue here resulted. Finding extraordinary aggravating circumstances, the trial court sentenced Newman to the custody of the Department of Corrections for eight years for the disposal conviction and six years for improper storage, to run consecutively. The court sentenced Thoro to probation for ten years and assessed a fine of $750,000 for criminal mischief, $100,000 for improper disposal, and $100,000 for storage of hazardous waste without a permit. This appeal followed.

I.

Defendants contend that, because they last disposed of the solvents on their property in 1985, the applicable statute of limitation prohibits their prosecution for improper disposal of hazardous waste. Accordingly, they contend the trial court lacked jurisdiction, and the charges for hazardous waste disposal without a permit must be dismissed. We agree.

The purpose of the statute of limitation in a criminal case is to protect individuals from defending themselves against stale criminal charges, to prevent punishment for acts committed in the remote past, and to provide the accused with notice of the decision to prosecute and the general nature of the charge with sufficient promptness to allow the preparation of a defense. Higgins v. People, 868 P.2d 371 (Colo.1994).

In criminal cases, statutes of limitation are jurisdictional and operate as a bar to prosecution. Consequently, a conviction obtained in violation of the applicable statute of limitation is void. Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958); People v. Verbrugge, 998 P.2d 43 (Colo.App. 1999).

Section 25-15-310, C.R.S.2000, provides in pertinent part that: "On or after [November 2, 1984], no person shall ... [t]reat, store, or dispose of any hazardous waste identified or listed pursuant to this article ... without having obtained a permit ...." A person who knowingly violates this provision is guilty of a felony and may be punished by imprisonment not to exceed four years. Section 25-15-310(3), C.R.S.2000.

The applicable statute of limitation permits prosecution for disposal of hazardous waste within two years from the date the Department of Public Health and Environment discovers the alleged violation, or within five years after the date upon which the alleged violation occurred, whichever is earlier. Section 25-15-308(4)(a), C.R.S.2000. If charges are not brought within these periods, the department may issue a remediation order within two years of discovering a disposal violation. However, it may not "seek any administrative, civil, or criminal penalties." Section 25-15-308(4)(b) C.R.S.2000.

Defendants admit they allowed hazardous wastes to spill and leak onto the ground. However, they contend that, because they no longer possessed any solvent as of 1985, such was the last date upon which they "disposed" of such wastes within the meaning of the statute. Since they were not charged until 1997, they argue their convictions were obtained in violation of the five-year statute of limitation.

The indictment alleged that between 1964 and 1990 defendants disposed of the solvents in a manner that allowed them to spill onto the ground, and also alleged that defendants' violation continued to the date of indictment because they allowed the solvents to percolate into the soil without remediation. At trial, the prosecution asserted that defendants had committed a crime when they disposed of hazardous waste without a permit, and by doing so, had triggered a legal obligation to obtain a permit, which continued until the waste was cleaned up. Hence, the prosecution asserted defendants were liable for continuous improper disposal.

We note first that neither party relies upon the two-year discovery period specified in the statute of limitation. The issue, then, is when defendants' disposal of hazardous waste occurred, and that requires us to analyze the definition of "disposal" contained in the statute.

Section 25-15-101(3), C.R.S.2000, defines "disposal" as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water" so that it may enter the environment, be emitted into the air, or be discharged into any waters.

When interpreting a statute, we are guided by the intent of the General Assembly, which directs us to look first to the plain meaning of the words employed. People v. Banks, 9 P.3d 1125 (Colo.2000). We resort to rules of statutory construction and legislative history only if the words employed give rise to more than one meaning. See Terry v. People, 977 P.2d 145 (Colo.1999)

; People v. Terry, 791 P.2d 374 (Colo.1990).

In interpreting statutes, we must construe each statutory provision in harmony with the overall statutory scheme. Wilczynski v. People, 891 P.2d 998 (Colo.1995). We must also avoid statutory constructions that lead to absurd results. People v. Swain, 959 P.2d 426 (Colo.1998).

If an ambiguity in a criminal statute exists and that ambiguity cannot be resolved, then we must construe the statute in favor of the defendant pursuant to the rule of lenity. Fields v. Suthers, 984 P.2d 1167 (Colo.1999).

Here, the statute defining "disposal" uses words that have different meanings. The verbs "discharge," "deposit," "inject," "dump," and "place" support an "active" interpretation of disposal, that is, one that requires an affirmative human act that concludes when the hazardous substance contacts the ground or water. See Webster's Third New International Dictionary 605, 644, 701, 1164, 1727 (1986).

The words "spilling" and "leaking" lend themselves to an active interpretation as well. However, they also may be interpreted as having passive connotations, as when a person, through fault or mistake, allows a liquid to spill from a container or leak through an opening. "Leak" can also connote an escape from a particular area, container, or vessel. See Webster's Third New International Dictionary, supra, at 1285, 2195. Hence, leaking can be interpreted as an act that endures as long as the escape of material continues.

The active construction supports defendants' interpretation of disposal; the passive interpretation supports the prosecution's. Both are viable interpretations.

Colorado's statute proscribing hazardous waste disposal uses the same language as that contained in the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901, et seq. (1994), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. (1994), federal statutory schemes concerning hazardous wastes. Consequently, we agree with both parties that federal case law may be helpful. See Colorado Civil Rights Commission v. Big O Tires, Inc., 940 P.2d 397 (Colo.1997)

(federal law, though not controlling, is instructive on the issue of construction of a Colorado statute where the state and federal statutes are identical or substantially so).

Initially, we observe that gleaning firm conclusions from cases attempting to interpret RCRA and CERCLA is a herculean task. As one court has noted, "RCRA has an `Alice in Wonderland' air about it." Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1308 (2d Cir.1993). The meaning of "disposal" varies, depending upon the parties involved and the nature of the underlying action. Compare In re Consolidated Land Disposal Regulation Litigation, 938 F.2d 1386, 1389 (D.C.Cir.1991)

(upholding EPA interpretation of RCRA regulations that, because "disposal" includes "leaking," it is a "continuous phenomenon rather than a discrete event"); United States v. Power Engineering Co., 10 F.Supp.2d 1145 (D.Colo.1998) (under RCRA, "disposal" includes "leaking," so disposal continues when wastes migrate), aff'd, 191 F.3d 1224 (10th Cir.1999); City of Toledo v. Beazer Materials & Services, Inc., 833 F.Supp. 646 (N.D.Ohio 1...