People v. Thoro Products Co., Inc.

• Decision Date: 19 May 2003
• Docket Number: No. 01SC419.,01SC419.
• Citation: 70 P.3d 1188
• Parties: The PEOPLE of the State of Colorado, Petitioners, v. THORO PRODUCTS COMPANY, INC., a Colorado corporation, and Richard Ernest Newman, Respondents.
• Court: Colorado Supreme Court

70 P.3d 1188

The PEOPLE of the State of Colorado, Petitioners, v. THORO PRODUCTS COMPANY, INC., a Colorado corporation, and Richard Ernest Newman, Respondents.

No. 01SC419.

Supreme Court of Colorado, En Banc.

May 19, 2003.

Rehearing Denied June 16, 2003.¹

Ken Salazar, Colorado Attorney General, Eric Nelson, Special Assistant Attorney General, William C. Allison V, Assistant Attorney General, Dennis Hall, Special Assistant Attorney General, Appellate Division, Criminal Appeals, Denver, Colorado, Attorneys for Petitioner.

Jean E. Dubofsky, Jean E. Dubofsky, P.C., Boulder, Colorado, Attorney for Respondent.

Gablehouse, Calkins & Granberg, LLC, Timothy R. Gablehouse, Donn L. Calkins, Melanie J. Granberg, Denver, Colorado, Attorneys for Amicus Curiae Vintage Sales, LLC.

Alan G. Lance, Idaho Attorney General, Clive J. Strong, Deputy Attorney General, Darrell G. Early, Deputy Attorney General, Statehouse, Boise, Idaho, Attorneys for Amicus Curiae the State of Idaho, Department of Environmental Quality.

Peter A. Weir, Executive Director, Colorado District Attorneys Council, Denver, Colorado, Local Counsel for Amicus Curiae.

Justice RICE delivered the Opinion of the Court.

The People urge this court to reinstate Respondents' convictions for unpermitted disposal of hazardous waste in violation of section 25-15-310, 8 C.R.S. (2002). The court of appeals reversed the convictions after concluding that the prosecution of the Respondents was barred by the applicable statute of limitations. We affirm the judgment of the court of appeals.

We hold that the plain language of the statute, the apparent legislative policies underlying the statute, and the various federal interpretations of the term "disposal," do not provide a clear answer to the question presented herein, namely, whether the legislature intended the passive migration of waste to constitute the crime of unpermitted "disposal" of hazardous waste. We therefore conclude that the Respondents did not have adequate notice of the conduct the statute was intended to prohibit; specifically, the Respondents did not have notice that their failure to remediate contaminated soil and prevent the passive migration of previously spilled waste would constitute a continuing crime such that they would be subject to the possibility of criminal charges twelve years after the last affirmative act of disposal. Based on the rule of lenity, we accordingly construe this ambiguity in favor of the Respondents and hold that their prosecution is barred by the statute of limitations.

I. FACTS

Thoro Products Company, Inc. and its CEO, Richard E. Newman, were accused of various crimes in connection with the unpermitted storage and disposal of hazardous waste.

Thoro, a manufacturer of spot remover and other cleaning products, was founded in 1902 by Newman's grandfather. After World War II, Newman's father became president of the company and the business was moved to its current location, an industrial area served by a railroad spur in Arvada.

Respondent, Richard E. Newman, began working for Thoro in 1974. He worked in several different roles in the business and soon rose to a supervisory position. Following his father's retirement in 1987, Newman became the president and CEO of the company.

This case arose as a result of Thoro's twenty-year business relationship with Dow Chemical Company. In 1964, as part of a plan to diversify its operations, Thoro became a bulk distribution facility for Dow. Dow shipped various chemicals to Thoro where they were pumped from rail cars into several above-ground storage tanks. Thoro would later pump the chemicals from the storage tanks into trucks for shipment to Dow's customers. Among the Dow chemicals shipped to Thoro were four types of chlorinated solvents later identified by the EPA to be potentially hazardous wastes.² These four solvents led to the plume of contamination at issue here.

While the solvents were handled at the Thoro facility, it was not uncommon for there to be a significant amount of spillage. Former employees of Thoro testified that spills occurred as a result of over-filled tank cars, leaky pumps and hoses, or accidents. Newman recounted three major spills—estimated to have discharged up to several hundred gallons of solvents—during the 1970s. Although the storage tanks were placed upon small concrete pads, the areas between the tanks and the rail tracks and between the tanks and the truck loading area were unpaved. It was therefore almost certain that a substantial amount of the solvents seeped into the soil.

The contract with Dow came to an end and Thoro stopped handling solvents at some point during 1984 or 1985, several years before Newman became CEO of the company.³ Eventually, the company's fortunes declined and by 1997, Thoro was officially dissolved as a Colorado corporation.

In the spring of 1995, high concentrations of chlorinated solvents were discovered in a water well at the Twins Inn bar and restaurant, located approximately one mile from the Thoro facility. The EPA began an investigation to determine the source of the groundwater contamination and eventually removed soil samples from the Thoro property. Based upon the nature and extent of the contamination found around the storage tanks, the EPA concluded that Thoro was responsible for the mile-long plume of contaminated groundwater.

In November 1996, the EPA, along with local law enforcement agents, executed a search warrant at the Thoro property and seized a variety of documents and records relating to Thoro's business relationship with Dow. Authorities also discovered several 55-gallon drums which, later analysis revealed, contained a mixture of various hazardous solvents.

Thoro Products Company, Inc. and Richard E. Newman were each indicted on three charges: (1) Unpermitted disposal of hazardous waste in violation of section 25-15-310, 8 C.R.S. (2002); (2) Unpermitted storage of hazardous waste in violation of section 25-15-310, 8 C.R.S. (2002); and (3) Criminal mischief, a class three felony in violation of section 18-4-501, 6 C.R.S. (2002).

After a two-week trial, Thoro was convicted of all three charges. The company was sentenced to probation for ten years and assessed a fine of $750,000 for criminal mischief, $100,000 for unpermitted disposal, and $100,000 for unpermitted storage.

Newman was convicted of two charges, unpermitted disposal and unpermitted storage of hazardous waste. During sentencing, the trial court found extraordinary aggravating circumstances and sentenced Newman to consecutive terms of incarceration of eight years for unpermitted disposal and six years for unpermitted storage.

The court of appeals reversed both Respondents' convictions for unpermitted disposal, concluding that they were barred by the statute of limitations.⁴ People v. Thoro Products Co., Inc., 45 P.3d 737 (Colo.App. 2001). The statute of limitations, section 25-15-308(4)(a), provides that criminal charges must be brought within two years after discovery of the violation or within five years after the date on which the alleged violation occurred, whichever date occurred earlier. Respondents argued that the last act of disposal occurred no later than 1985, and that therefore the prosecution was barred. The People countered that the definition of "disposal" in the statute is broad enough to encompass the passive migration of waste in the soil or groundwater. Although Thoro's handling of the solvents had ceased, they were still "disposing" of hazardous waste because the waste continued to seep through the soil on their property. The court of appeals agreed with the Respondents and reversed their convictions.

We granted certiorari on the question of whether the passive migration of previously leaked or spilled hazardous solvents constitutes "disposal" under section 25-15-310, 8 C.R.S. (2002).

II. ANALYSIS

Respondents were convicted of unpermitted disposal of hazardous waste in violation of section 25-15-310(1)(b), 8 C.R.S. (2002). That section provides:

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 as required by this article....

An act of disposal is defined to include:

... the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

§ 25-15-101(3), 8 C.R.S. (2002).

Criminal charges under this statute must be brought "within two years after the date upon which the department [of public health and environment] discovers an alleged violation... or within five years after the date upon which the alleged violation occurred, whichever date occurs earlier ..." § 25-15-308(4)(a), 8 C.R.S. (2002) (emphasis added). Because it would be the first to run in this case, only the five-year limitation period is relevant here.

We hold, after considering various tools of statutory construction, that the General Assembly did not manifestly indicate its intent to include passive migration of waste within the meaning of "disposal." Relying on the rule of lenity, we conclude that Respondents' failure to remediate the contaminated soil and prevent the passive migration of previously spilled waste did not constitute a continuing crime such that Respondents remain subject to the possibility of criminal charges twelve years after the last affirmative act of disposal.

First, we discuss the doctrine of continuing offenses and note that the General Assembly did not explicitly declare that unpermitted disposal of hazardous waste should be construed as a continuing offense. Nonetheless, a crime may be a continuing offense if the nature of the offense indicates that the legislature "must assuredly have intended" it be...