People v. Thoro Products Co., Inc.

six-year note within original promissory 18-80- in section period contained

limitations (2002), has and thereafter

108.5, 5 C.R.S. Accordingly, judgment. the note

reduced and hold that appeals court reverse the

we on the lien of foreclose action to

MIC's the statute not barred of trust

deed reinstatement order

limitations. We action, this we remand foreclosure

MIC's pro- further appeals for court of

case to the opinion, includ-

ceedings consistent with remaining ap- issues decision that court. properly before

peal that are BENDER and Justice KOURLIS

Justice participate.

do not the State of

The PEOPLE of Petitioners,

Colorado, COMPANY, INC., a PRODUCTS

THORO corporation, and Richard

Colorado Newman, Respondents.

Ernest

No. 01SC419. Colorado,

Supreme Court of

En Banc.

May

Rehearing Denied June 2003.* * MULLARKEY, grant petition. BENDER would and Justice Justice MARTINEZ Chief Justice Salazar, General, Attorney

Ken Colorado Nelson, Special Eric Attorney Assistant Gen- eral, V, Attorney WilliamC. Allison Assistant General, Hall, Special Dennis Assistant At- General, Division, torney Appellate Criminal Denver, Colorado, Appeals, Attorneys for Pe- titioner. Dubofsky, P.C., Dubofsky,

Jean E. Jean E. Boulder, Colorado, Attorney Respondent. for Gablehouse, LLC, Granberg, Calkins & Gablehouse, Timothy Calkins, R. Donn L. Denver, Colorado, Granberg, Melanie J. At- Sales, torneys Vintage for Amicus Curiae LLC. Lance, General, Attorney

Alan G. Idaho General, Strong, Deputy Attorney J. Clive General, Early, Deputy Attorney Darrell G. Statehouse, Boise, Idaho, Attorneys Ami- Idaho, Department cus Curiae State of Quality. Environmental Weir, Director, A. Peter Executive Colora- Council, Denver, Attorneys do District Colo- rado, Local Counsel Amicus Curiae. Opinion Justice RICE delivered the of the Court. People urge this court to reinstate

Respondents' unpermitted convictions for disposal of in violation of hazardous waste 25-15-3810, section 8 CRS. appeals

court of af- reversed the convictions Newman, began prosecution Respondent, Richard E. concluding that of the ter working for in 1974. applicable Thoro He worked Respondents was barred several different roles the business judg- We affirm the of limitations. supervisory position. soon rose to Follow- appeals. the court of ment of ing his father's retirement Newman plain language hold We president of the com- became CEO statute, legislative policies un- apparent pany. statute, and the various federal derlying the This case arose as a result of Thoro's "disposal," of the term do not interpretations twenty-year relationship Dow business with question pre- to the provide a clear answer 1964, Company. part Chemical as of herein, namely, legisla- whether sented diversify operations, plan to its Thoro be passive migration of waste intended the ture facility for Dow. came a bulk distribution unpermitted the crime of "dis- to constitute shipped to Thoro Dow various chemicals therefore posal" hazardous waste. We they pumped from rail cars into where were Respondents did not have conclude that the above-ground storage tanks. Thoro several adequate of the conduct the statute notice pump would later the chemicals from the specifically, prohibit; was intended storage shipment for tanks into trucks not have that their Respondents did notice Among the chemi Dow's customers. Dow contaminated and to remediate soil failure types shipped to Thoro were four cals passive previously prevent by the chlorinated solvents later identified would constitute a waste potentially EPA to hazardous wastes1 they subject would be to the crime such plume to the con These four solvents led charges years possibility of twelve tamination at issue here. disposal. affirmative act of after the last the solvents were handled at While lenity, accordingly rule of Based on the we facility, Thoro not uncommon for there was ambiguity in favor of the Re- construe this significant spillage. For- to be amount of prosecution spondents and hold spills employees mer of Thoro testified that by the statute limitations. barred cars, occurred as a result of over-filled tank hoses, leaky pumps and accidents. New- I. FACTS major spills-estimated man recounted three discharged up to have to several hundred Company, Inc. its Thoro Products and solvents-during Al- gallons of the 1970s. Newman, CEO, E. were accused of Richard though storage placed upon tanks were unper- various crimes connection with pads, the small concrete areas between storage mitted tanks and the rail tracks and between the waste. loading truck un- tanks and the area were paved. It therefore almost certain that was Thoro, spot manufacturer remover and seeped a substantial amount of the solvents cleaning products, in 1902 other was founded into the soil. by grandfather. Newman's After World II, president father War Newman's became Dow came an contract with end company stopped handling of the and the business was moved Thoro solvents at some location, point during years to its current industrial 1984 or several be area company.2 fore Newman became CEO of the by spur served a railroad Arvada. 1. The four solvents were clause of both the state and federal consti- Tetrachloroethene facto (PCE), (TCE), 1,1,1, I, 3; Trichloroethene § Trichloro- U.S. tutions. Const. art. cl. Colo. Const. (1,1,1-TCA), Methylene ethane II, however, Chloride. People, presented art. 11. handling evidence that of the Dow solvents Respondents vigorously argued, both at trial jury continued at least 1985. The made appeal, they stopped handling and on sol- specific finding regard no with to this issue and vents October to the effective date prior appeals, holding the court of because of its (November 2, 1984) of the Colorado hazardous did not ad- limitations question, 25-15-102(3), management statute. See Respondents' post argument. ex dress facto Therefore, Respondents 8 C.RS. con- opinion, purpose of this we will assume post prosecution tend that their violated the ex years unpermitted disposal years and six declined for company's fortunes Eventually, unpermitted storage. officially dissolved Thoro was eorporation. a Colorado appeals The court of reversed both Re 1995, high concentrations spring In the spondents' unpermitted dis convictions posal, concluding were barred were discovered chlorinated solvents People and restau- the statute of limitations.3 v. Thoro the Twins Inn bar well at rant, mile from Products approximately one Co., Inc., (Colo.App. located 45 P.3d 787 2001). limitations, began EPA an inves- 25- facility. The The statute of section Thoro 15-308(4)(a), provides charges that criminal the source of tigation to determine eventually brought years after dis must be within two groundwater contamination proper- covery five samples from the Thoro of the violation or within soil removed alleged violation upon the nature and extent after the date on which ty. Based occurred, storage around the whichever date occurred earlier. found contamination argued tanks, Respondents that Thoro was that the last act of dis the EPA concluded posal occurred no later than and that mile-long plume of con- responsible for the prosecution was barred. The groundwater. therefore taminated "dis People that the definition of countered EPA, along with In November enough posal" in the statute is broad agents, executed law enforcement local encompass passive migration of waste at Thoro warrant search property groundwater. Although or Thoro's the soil variety documents and records seized ceased, handling had the solvents relationship with relating to Thoro's business "disposing" of hazardous waste be were still several 55- Authorities also discovered Dow. through seep waste continued to cause the revealed, which, analysis later gallon drums property. the soil on their The court of mixture of various hazardous contained a Respondents appeals agreed with solvents. their convictions. reversed Company, Inc. and Rich- Products Thoro granted question on the We certiorari three each indicted on ard E. Newman were previously passive migration whether (1) Unpermitted disposal of hazard- charges: consti- leaked or hazardous solvents 25-15-310, 8 in violation of section ous waste 25-15-8310, "disposal" tutes under section (2) (2002); storage of Unpermitted C.R.S. (2002). C.R.S. of section 25- hazardous waste violation (8) (2002); 15-310, Criminal 8 C.RS. II. ANALYSIS mischief, felony in violation of a class three (2002). 18-4-501, 6 C.R.S. section unpermit- Respondents were convicted disposal of hazardous waste violation ted trial, Thoro was convict- a two-week After (2002). 25-15-310(1)(b), 8 of section C.R.S. company charges. three was ed of all > provides: That section probation years and for ten sentenced 2, 1984], person no [November On or after $750,000 mis- a fine of for criminal assessed [tJreat, store, any dispose ... or shall chief, $100,000 disposal, unpermitted pursu- waste identified or listed $100,000 unpermitted storage. having ... without ob- ant to this article charges, Newman was convicted of two arti- permit required this tained a unpermitted disposal and stor- unpermitted cle.... sentencing, During age of hazardous waste. disposal is defined to include: An act of extraordinary aggrava- trial court found discharge, injection, dump- ... ting and sentenced Newman cireumstances deposit, any leaking, placing of eight ing, spilling, terms of incarceration of to consecutive did, fact, unpermitted storage of hazardous viction for Thoro handle Dow solvents and re- at least 1985. court reversed the sentence waste. The re-sentencing. 45 P.3d at 747-49. manded for appeals The court of also concluded that the ruling part the court's is not before us. This sentencing Newman trial court erred in Mr. statutory range for his above the authorized con- any land or limitations. conclude that an examina- into or We hazardous waste any competing policy waste or tion of the interests re- that such hazardous so may enter the environ- in the statute not answer thereof flected does constituent into the air dis- ment or emitted question legislature be of whether the intended waters, including ground unpermitted disposal deemed a con- charged into tinuing offense. waters. 25-15-101(8), C.R.S. interpretation further review the We charges under this statute must

Criminal "disposal" provided by various federal courts brought years two after the date "within ultimately none of conclude since department public meaning health upon [of which the them consider the alleged viola- discovers of a criminal statute of limita- context environment] after the date tion ... or within tions, analysis unhelpful. their five occurred, alleged violation upon which Finally, because we are to deter- unable earkier ..." 25-15 date occurs whichever Assembly mine whether the General intend- (2002) added). 808(4)(a), (emphasis 8 C.R.S. passive migration ed the of waste to consti- run in be the first to Because would unpermitted disposal, tute the crime of we case, five-year period limitation conclude, lenity, the rule relevant here. adequate Respondents did not have notice hold, considering various tools of We after previously failure to remediate construction, statutory that the As- General possibility in the of waste would result manifestly intent sembly did not indicate its charges. criminal passive migration of within to include waste meaning "disposal." Relying on the the A. Statute of Limitations the lenity, Respondents' we concludethat rule of Continuing Doctrine of Crimes to remediate the contaminated soil failure applicability To decide the of the stat passive migration previ- prevent the limitations, ute of we must determine when ously spilled did not a con- constitute disposal alleged violation-unpermitted the Respondents tinuing crime such that remain Normally, a hazardous waste-occurred. charges subject possibility the to begins run statute of limitations when the act of twelve after last affirmative complete; all crime is when its substantive disposal. Wayne elements have been satisfied. R. See First, we the doctrine of con discuss LaFave, et al. Criminal Procedure tinuing and note that the General offenses (2d ed.1999). 18.5(a) case, § all this Assembly explicitly that un- did not declare elements of the crime were satisfied at the permitted of hazardous waste should knowingly employees moment Thoro's al continuing as a offense. None be construed spill without lowed solvents to into the soil theless, may continuing a crime be a offense obtaining permit. a first if the nature of the offense indicates However, cireumstances, in certain a crime assuredly legislature "must have intended" it beyond the all continues first moment when States, treated as one. Toussie v. United be its elements are See substantive satisfied. 858, 397 U.S. 90 S.Ct. 25 L.Ed.2d 156 States, 112, 115, Toussie v. United 397 U.S. (1970). (1970); 90 S.Ct. L.Ed.2d United Next, meaning "dispos- we consider the Mata, States De La 266 F.3d legislature al" whether in- to determine (11th Cir.2001) ("A continuing offense is one unpermitted disposal to constitute a tended act, complete upon which the first continuing offense. conclude that We perpetrated continues to be over instead plain language of the statute does not answer time."); Law 518 Am.Jur.2d Criminal question. (1998) ("[A] continuing offense is a continu ous, purposes of acts underlying then unlawful act series set We consider by single impulse operated by motion a whole, specifical- of the and more statute as ly, purpose applicable foree...."). of the statute of In such a an unintermittent appropriate (and framework analyzing offense, for continuing the doe- the crime continues begin limitations does not statute of continuing trine of offenses. See State v. run) long illegal as the conduct continues. so (Tenn.1999) Legg, 9 S. W.3d111 (adopting the (2002)("When 16-5-401(4), §See 6 C.R.S. analysis continuing Toussie offenses delinquent act offense or is based on series Tennessee). times, performed at different acts period prescribed by limitation this code Using a backdrop. analy- Towussteas for our starts at the time when the last act in the sis, we first note Colorado's statute con- committed.")4 series of acts is We have explicit language tains no compels which us found no relevant case in which doctrine unpermitted conclude that the disposal of continuing applied offenses has been continuing hazardous waste is a offense. impose penalties unpermit- eriminal for the explicit language This absence of is notable. ted of hazardous waste.5 example, Assembly when the General pur Because there is "tension between the conspiracy, defined the crime of specifically it pose of a statute of limitations and the con declared that the a "continuing crime was doctrine," tinuing Supreme offense Court course of conduct" only upon which ends has cautioned that "the doctrine of continu completion of the erime or the abandonment applied offenses should limited agreement. 18-2-204(1), 6 C.R.S. Toussie, cireumstances." 397 U.S. at Assembly If the General intended to (holding register S.Ct. 858 the failure to continuing case, draft was not offense and create a offense five-year began to knew the sort of language it could include to limitations days eighteenth run five after defendant's unmistakably communicate this intent. birthday). that, The Court further advised because the limitation of actions is a matter Nonetheless, Toussie, as noted legislative policy, it would not a con find crime a continuing deemed offense if tinuing explicit language offense unless "the the "nature of the erime" is such that of compels the substantive criminal statute Assembly assuredly General "must have in conclusion, such a or the nature of the crime Toussig, tended" be treated as such. See Congress involved is such must assured 115, Therefore, 397 U.S. at 90 S.Ct. 858. the ly have intended that it be treated as outcome depends of this case on whether the continuing Although one." Id. we need not Assembly General intended the crime of un- Supreme analysis the follow Court's in Tous- sie, persuaded provides permitted we are that it "disposal" passive include to the frequently example tinuing 4. The most cited of a con at offense. Id. 887. The nature of the tinuing conspiracy. offense-storage-is any offense is See United States such that other inter- 1493, (10th Jaynes, Cir.1996) pretation illogical. v. 75 F.3d 1505 would be ("Conspiracy prototypical continuing ... is the Second, Brothers, in State v. No. 2001-Ohio- offense."). conspiracy, In addition to various 8725, (Ohio 14, Ct.App. 2001 WL 1602692 Dec. categorized other offenses have been as continu 2001), allegedly the defendant buried drums of See, eg., Bailey, offenses. United States v. property hazardous waste on his from 1991 to 394, 624, 444 U.S. 100 S.Ct. 62 L.Ed.2d 575 1999, argued 1997. Indicted in defendant (1980) (escape); Denny-Shaffer, United States v. illegal disposal the crime of waste was barred (10th Cir.1993) (kidnapping 2 F.3d 999 under the five-year the statute of at limitations. Id. *1. statute); federal United v. Martinez, States 890 disagreed, specifically The court that the noting (10th Cir.1989) (failure appear); F.2d 1088 continuously leaking through drums were Martinez, 71, People Colo.App. v. 37 P.2d Id. at *2. It was this from the drums into (1975) (larceny continuing is a crime disposal the soil which was the "continuous" every asportation taking). a new constitutes charged. which defendants were court any underground passive made no reference to People inapplicable. 5. The cases cited are migration as is the case here. fact, First, White, in United States v. criminal case we have found F.Supp. (E.D.Wash.1991) agreed charged precise which considered issue defendant with was waste, unpermitted storage with analysis hazardous appeals. of the court of See L.B. State, unpermitted disposal. rather than As court Foster Co. v. Nos. & 01- 01-01-00299-CR 01-00300-CR, 106 S.W.3d 2003 WL concluded, in White there can be "little doubt" 27, 2003). unpermitted storage (Tex.Ct.App. that the crime of ais con- Mar. Towussie, at continuing 397 U.S. offense. spilled hazardous solv previously migration disagree. 858. We 90 S.Ct. ents.6 First, meaning "leaking" does plain "Disposal" Meaning of B. interpretation. We support not People's view, of "dis- the definition People's In the dictionary frequently looked to have migration of sol- passive posal" includes meaning of undefined words ascertain the Although groundwater. through the vents Forgey, v. TIO P.2d People See a statute. any placed sol- Respondents have (Colo.1989). common defi- The most People ground since into the vents escape through "to enter or nition of "leak" is Respondents assert hole, crevice, opening." other Websters or because the the chemicals "dispose" of Dictionary 1285 Third New International seeping through the are still spilled solvents connotes move- This definition soil. of its containment the substance out ment of hand, Respondents contend the other On Here, opening. the waste some only an affirmative includes not contained. Thus, they argue initial disposal. act of Assembly intended insert If the General "dispos- the soil was onto spilling of solvents to de- into the definition word seeping the chemi- al," subsequent any passive scribe not. cals was waste, many likely more we can think "leaking." example, than candidates Language 1. Plain "oozing," "percolating," "mi- as words such any statutory in step in The first provide all grating," "seeping," or would plain examination terpretation is an description that event. See more exact People itself. v. Nor- language of the statute Village, Corp., Litd. v. Unocal Carson Harbor (Colo.20083). tor, The statute 63 P.3d 389 Cir.2001). (9th None of these 270 F.3d 863 broadly: defines included in the definition. were discharge, deposit, "Disposal" means the leaking, or injection, spilling, dumping, likely reason for the inclusion of The more into or on placing any hazardous waste to address a "leaking" in the definition is so that such any land or water was to acci- situation which waste allowed may enter any thereof or constituent dentally negligently escape from its con- air emitted into the or be the environment tainment, drum, or, such as a barrel or waters, including discharged into here, from defective hoses or was the case ground waters. Indus- pumps. See United States Waste (2002). 25-15-101(8), People The (D.N.C.1982). 8 C.R.S. tries, F.Supp. "leaking" evidence that as embrace the word Next, of the other an examination have intend- legislature the "must assuredly pas- "disposal" includes unpermitted that in a descriptive words ed" the same statute belies constitutes a migration and therefore passive migration interpretation sive of the term permit require- People's the Respondents' The reliance on People failure contend The dispos- permit, regulations begs question. than the act of a rather It is obtain ments in the al, ongoing conduct. In their criminal was the Respondents did not obtain the neces- clear that view, "disposal facility," plant was a the Thoro However, sary permits. does not this failure any regulations to include is defined in which automatically trigger liability. The criminal inten- "facility hazardous waste is ... at which unpermitted disposal of hazardous crime tionally land or water...." into or placed essentially be con- three elements. To waste has (2001). 260.10, The own- C.C.R. 1007-3 Rule victed, 1) 2) knowingly dispose a defendant must "must have operators of such facilities ers and 3) permit. without a The of hazardous waste (including during life the clo- permits the active merely permit one element. failure to obtain a 100.10, 6 C.C.R. period) the unit." Rule sure People Respondents- must The still show requirement permit contin- This 1007-3 years prior the five to their indictment- within disposal throughout of the the active life ues "disposing" hazardous waste. There- were public department of health and facility until fore, depends case on the the outcome of this of final clo- receives certification environment (1999) (de- term, 260.10, meaning "disposal." 6 C.C.R. 1007-3 sure. Rule facility). fining "active life" of a meaning undefined argue passive migration of an "leaking." The People The that a interpretation disposal consistent with may be determined in a statute word legislative ensuring protec- intent of meaning associated of words to the reference tion of the from the adverse Hartsough, 790 P.2d environment it. State with See disposed (Colo.1990). illegally effects of hazardous waste. words Six the seven hand, "injec- Respondents argue that a statute, "deposit," On the other "discharge," in the "placing," tion," "spilling,"and all "dumping," passive migration interpretation disposal Assembly's intent to lim- thwarts General act one or more an affirmative describe punishment {only criminal is, it the use of must dis- That individuals. someone recent violators of the act. place inject, dump, spill, deposit, charge, any land or water. That or on waste into management system The which could "leaking" as the word leaves protec- was created to "ensure Colorado subject passive interpreta- be arguably safety public tion of healthand envi- However, may just easily "leaking" as tion. Basis and ronment." Part Statement of interpretation; may subject active to an (1995). The crimi- Purpose, 6 C.C.R. 1007-8 way an indi- to describe which be used play penalties in the nal contained waste into the environ- couldintroduce vidual punish- by deterring role scheme negli- example, the accidental or ment. unpermitted transportation, storage, defective hoses of solvents from gent release of hazardous waste. "leaking." may pumps described acknowledge interpretation an We necessarily describe the word does not While passive disposal which excludes conduct, it nonetheless describes intentional bring may make it more difficult to indeed disposal. fact that act of The an affirmative charges disposal portion are words the statute six of the seven Because of the slow of section 25-15-8310. interpretation lends subject only to an active groundwater, in the movement of waste "leaking" argument support to the many until crime not be discovered similarly given a active inter- should also be dispos- years after the last affirmative act pretation. incentive, given an there- al. Violators plain language that the conclude We fore, regardlng silent to remain crimes question of not answer statute does prosecution. and avoid unper- legislature intended whether the however, magni- People, overstate the of- disposal be deemed mitted First, problem. who tude of this Therefore, legis- we next consider fense. offender intentionally his unlawful conceals policies underlying the purpose and lative subject prosecution. See 25- still be will statute. (2002) 15-308(4)(a), (providing that C.R.S. for, any the statute of limitations is tolled 2, Legislative Purpose period during intentionally which a violator, Initially that traditional sources of we note misconduct). if even conceals his addition, history proven unhelpful legislative have Habili- potential fines or criminal civil cite, our parties do not this case. barred, department public ty is health uncovered, any has not rele- own research authority the to and environment still has legislative history the mean- piece vant of requiring an order remediation issue the statute. of Colorado site, long the is issued within two so order addition, federal statutes which form In the discovery of the violation. See after of hazardous waste the foundation Colorado's (2002). 25-15-308(4)(b), § 8 C.R.S. uncoopera- management system similarly are is a risk that an of legislative history on While there yielding tive in useful Therefore, the meaning "disposal." hopes of the in the fender will conceal his misdeeds parties attempt decipher to the intent of the less a risk avoiding prosecution, of this is no every in criminal case the here than it would be legislature by reference to their view of exists. in a statute of limitations purpose. policy underlying the statute's which provisions. Nonetheless, Assembly various fit saw to General 1196 a of limitations for this crime.

include statute legislative ensuring protection intent of policy a choice made However, This reflects interpreta- the environment. defer. legislature Assembly's to which we must tion thwarts the General intent to protect limitation is to purpose during charges of a statute of limit the time which criminal defending Thus, from themselves may brought. individuals be we conclude that an analysis purposes charges, of the statute's does not against prevent criminal stale in punishment for acts committed the remote question legisla- answer the of whether past, and to "insure the accused will be unpermitted disposal ture intended a prosecute deemed of the decision to and the informed offense. charge general nature of the with sufficient Interpretation 3. Federal prepare him promptness to allow his de of his fense before evidence innocence be Next, parties urge us to look to the age." Higgins with v. Peo comes weakened discerning federal courts for assistance (Colo.1994) ple, (quoting 378 868 P.2d However, meaning "disposal." our review Wayne H. 2 R. LaFave & Jerold Israel, of federal law this area reveals 18.5(a)(1984)). Thus, § Procedure interpretation "disposal" adopted by Criminal provides predictability "by speci statute quite federal courts tends to be fact and beyond fying a limit which there is an irre- specific. context Because none of the cases that a buttable presumption defendant's parties meaning cited consider the right prejudiced." fair trial to a would be "disposal" in the context of a eriminal statute Marion, 307, 322, v. 404 United States U.S. limitations, assign significant we do not (1971). 455, 30 L.Ed.2d 468 92 S.Ct. weight analysis. to their reasons, these criminal statutes of limitations generally liberally should be construed a RCRA People Midgley, favor of the defendant. People rely primarily on federal cases (Colo.1986); 904 Toussie v. P.2d interpreting "disposal" under the Resource States, U.S. United S.Ct. Recovery Conservation Act of 1976 (1970). L.Ed.2d 156 (RCRA). § 42 U.S.C. 6901 to 6992k By extending perpetuity period into of The state statute at issue here was derived during charges may which criminal time large part from RCRA intended and was brought, People purpose eviscerate the management pro- create a hazardous waste limitations. gram in Colorado Under Peo- is similar to its which ple's interpretation "disposal," the five- However, counterpart. federal is one there year begin statute of limitations will not notable difference the two between statutes. 1) run until one of events occurs: specific The Colorado statute contains a stat- two permit accordance with ute of limitations while RCRA contains no obtained 2) Instead, regulations, provision. longer the waste is no comparable un- actions "leaking"-éither it has been cleaned because only by der limited the more up, or because there exists natural barrier general five-year federal statutes limita- practice, to its movement. an offender (federal tions. See 18 U.S.C. wrongdoing be forced to admit his to a (civil actions). offenses); U.S.C. would (in government agency order 'to obtain While it is true that most RCRA cases have permit), hope geological composi- that the interpreted "disposal" passive to include mi- passive migration tion of the land is such that gration, none have done so in the context of a precluded. of the waste is This could not have criminal statute of limitations. legislature been scheme the intended Most of the RCRA cases have arisen in when it created statute of limitations for type one of two contexts. The first case unpermitted disposal of hazardous waste. involves a "citizen suit" under section 7002 of § 42 two com- RCRA. U.S.C. 6972. That section au summary, In presents this case "any person" bring thorizes a civil action hand, peting policy interests. On the one passive migration interpretation disposal of against "any person alleged ... who is to be fully implement permit, regulation would in violation" of a seem to more

1197 6972(a)(1)(A) § 42 standard. U.S.C. Price, context. See United States v. 528 1055, (D.N.J.1981), F.Supp. 1071 7002, United bring In order to suit under section aff'd Price, plaintiffs must first (3rd Cir.1982) there is a States v. show 688 F.2d 204 (holding that section 7003 authorizes relief "continuous or intermittent violation" of the restraining "leaking" further of waste from a Gwaltney Smithfield, statute. See Ltd. v. noting landfill but Found., Inc., section 7008 49, does not Chesapeake Bay 484 U.S. (1987) 58-59, 376, general authorize a cleanup of 108 98 L.Ed.2d S.Ct. 806 dormant waste sites); Indus., United States v. Waste 734 (holding language that the "to be in violation" (4th Cir.1984) (noting F.2d 159 that section requires showing Act the Clean Water just 7008 restrains ongoing more than violation); human ongoing an or intermittent Acme conduct); United States v. Diamond Sham Inc., Menard, Printing Ink Co. v. 812 C80-1857, Corp., rock No. Rep. 12 Envtl. L. 1498, (E.D.Wis.1992) F.Supp. (noting 1511 20819, 20821, (N.D.Ohio 1981 187997 WL "every analyzed court that has [RCRA] 1981) May (noting disposal clearly that "a Gwaltney section 7002 the wake of has requires conduct"); no active human United allegation concluded that an of either a con Co., States v. Conservation Chemical 619 tinuous intermittent violation is re (D.Mo.1985) (" F.Supp. 200 'disposal' quired"). ... migrate occurs when [wastes] from their Several courts have been to decide asked location"); initial but see United States v. passive migration previously whether Wade, (E.D.Pa.1982) F.Supp. 546 (noting 785 dumped ongoing waste constitutes an viola previously dicta that dumped tion of the in these citizen suit cases. "disposal"). not does constitute Most conclude that it does. See Fallowfield addition, case, In one notable relied on Strunk, Corp. Dev. 1990 WL at *10 People, brought was not under either (E.D.Pa.1990) (The prior disposal of waste is section 7002 or 7008. See United States v. ongoing proper dispos an violation "until Co., (D.Colo. Eng'g F.Supp.2d Power procedures put al are into effect or the haz 1998), (10th Cir.1999). 191 F.3d 1224 In affd up."); City ardous waste is cleaned Toledo Engineering, Power the issue was whether Servs., Inc., v. Beazer Materials could, RCRA, EPA under section 3008 of (N.D.Ohio 1993) (same); F.Supp. defendant, enjoin a operator of a metal Co., Printing F.Supp. Acme Ink at 1512 refinishing plant, regulations. to. enforce state ("leaking may substances hazardous con Specifically, See 6928. U.S.C. the EPA stitute a continuous or intermittent viola sought compliance regulations with state re tion"); but see Connecticut Fisher Coastal quiring financial assurances from owners and Inc., Co., Remington men's Ass'n v. Arms operators of hazardous waste re facilities (2d Cir.1998) (no present 989 F.2d 1305 viola quiring they them to document have tion under RCRA section 7002 for the "mere sufficient resources to close their facilities decomposition pollutants"). pay third-party may claims that arise. The second situation in which RCRA cases argued they Defendants that since were typically "disposal" address inis the context waste, currently disposing oper were brought by aof remediation action the EPA ating compliance regulations with state under RCRA section 7003. This section exempt from require financial assurance grants equitable powers broad the EPA disagreed. ments. The court It held that injunctive restraining seek relief further vio "leaking" the use of the word the defini lation of the Act where there anis "imminent "disposal" leaching tion of indicated that the endangerment and substantial to health or groundwater of hazardous waste into 6978(a). environment." U.S.C. continuing disposal constitutes of courts Several have been asked to determine holding, waste. Id. at 1159-60. so site, whether an inactive where no particularly court was concerned that allow exempt the defendant to occurring, from affirmative acts of requirements constitute "imminent and substantial financial assurance would en endangerment." again, courage ignore permit Once most courts ac others to evade or cept passive in this definition Id. at RCRA. requirgments

1198

b. CERCLA from tanks constitute of waste CERCLA). disposal under inter "disposal" has been of The definition significant is difficult derive While piece differently under another preted much overview of federal insight from this brief Comprehensive En the legislation, of federal law, meaning apparent: the one becomes fact Li Compensation and Response, vironmental "disposal" RCRA and under affixed (CERCLA) 42 U.S.C. ability Act of 1980 precise lan- depends on the CERCLA less (1995). The definition §§ 9675 9601 to the definition and more on guage of to the is identical under CERCLA "disposal" equities particular specific of each facts 42 the term under RCRA. 'definition the context of the statute case and 9601(29). However, CERCLA, un U.S.C. interpreted. which the term was RCRA, to the created as solution was like People or of the cases cited None waste sites. and abandoned problem of old the situation we Respondents involve nature, is, very remedial. focus its Its application of a statute of confront here: - liability for potential provides for potential prosecution. limitations on disposal of time of any person "who at the Therefore, assign significant not do we operated substance owned hazardous interpretation weight to the sub any facility at which such provided by the federal courts. 42 disposed of" U.S.C. were stances 9607(a)(2). con Many courts have been Lenity The Rule of C. question of whether fronted with passive property on which owner of a that criminal law It is axiomatic occurring an owner migration of waste clear that a citizen must be such sufficiently disposal." Most courts "at the time People know what the law forbids. See will that dis issue have concluded consider this 19, Heckard, 431 1014 v. 164 Colo. P.2d passive posal not include does ambiguity in this reason, Sys., ABB Indus. waste. See Inc. meaning a criminal statute must be inter Cir.1997) (2d Tech., Inc., 120 F.3d 351 Prime preted in favor of the defendant under under CERCLA (prior are not liable Lowe, owners lenity. People v. 660P.2d 1261 rule of v. passive migration); Umited States (Colo.1983). (3rd Cir.1996) Co., Realty 96 F.3d 706 CDMG lenity ap The rule of should not be definition of (citing plain language of the intent of the plied to defeat the evident Gen concluding disposal does not disposal in Assembly. Terry People, v. 977 P.2d eral v. passive migration); United States include (Colo.1999). However, utilizing if after 145 (6th Land, F.3d 698 Cir. Acres 204 construction, statutory various aids of 2000) "leaking" in (noting "spilling" obscured, Assembly's intent remains General interpret the definitionof should lenity applied to the rule of should be resolve Ltd. v. actively); Carson Harbor Vill ed v. ambiguity. See Muscarello United (9th 868, 879 n. 7 Corp., 270 F.3d Unocal States, 524 U.S. S.Ct. Cir.2001) "[nlothing in (noting the con (1998)("[the lenity ap L.Ed.2d 111 rule 'disposal text of or the term [CERCLA] if, seizing everything plies only after from include suggests Congress meant derived, ... we can make which aid can be processes passive geological chemical or guess Congress as to no more than a what v. Petersen Sand migration"); United States intended") (internal omitted); quotations (N.D.Ill Gravel, Inc., F.Supp. 1846 Wilson, 10 F.3d United States .1992) (meaning "disposal" determined Cir.1993) ("The (10th lenity is a rule rule of conjunction meaning of the statuto with the resort, to be invoked after tradi last ry indicates that does term "release" interpreting the statute have tional means of Redwing passive migration); include exhausted."). been Ltd., Carriers, Apartments, Inc. v. Saraland occasions, (S.D.Ala.1995) (same); court has numerous F.Supp. On Nurad, Hooper E. & found ambiguity in a criminal stat- see Inc. v. William genuine (4th Cir.1992) fa- Co., interpretation which (passive adopted ute and Sons 966 F.2d 837 Suthers, See, provision e.g., Fields v. contained the accused. section 25~15- vors 308(d)(a). (Colo.1999) (holding that even Because the last P.2d 1167 affirmative act of statutory subject years alternative than if term was to occurred more five be lenity requires indictment, Respondents' rule interpretations, the fore we hold pre-sentence prosecution confinement credit be tak- by their was barred the statute twenty when judgment en into account to determine of limitations. The of the court of acerued); year parole eligibility appeals period for is affirmed. (Colo.1995) Glover,

People v. 898 P.2d 1811 (because ambiguous, applica- statutes were Justice HOBBS concurs. lenity requires a tion of the rule of dissents, Justice BENDER Chief Justice felony defendant not be convicted MULLARKEY and Justice MARTINEZ and murder after deliberation where murder join in the dissent. victim); only single a there was Faulkner (Colo.1992) (where Court, Dist. 826 P.2d HOBBS, concurring: Justice statutory language to alternate lent itself opinion I concur in judgment the constructions, lenity application of the rule of court,. In People's predic- the view of the jail requires that a defendant who received a impact upon tions of dire the State's hazard- probation as a condition of would still term program-were ous waste laws and we to eredit). good eligible time uphold judgment ap- of the court of case, plain language In this peals-I explain my judg- view that that the statute, apparent legislative policies un today ment the court announced addresses statute, derlying the and the federal various Assembly's the General intent interpretations "disposal," of the term do not 25-15-808(4)(a) (b), adoption of section & question pre provide a clear answer to the (2002), provi- C.R.S. statute of limitations herein, namely, legisla sented whether sions, they apply prosecutions as to criminal passive ture intended the of waste for violation of Colorado's hazardous waste unpermitted to the crime of "dis constitute laws. posal" of hazardous waste. therefore We view, my depriv- the difference between Respondents have conclude did not liberty person of his or her and/or adequate notice of the conduct the statute imposing criminal fines violation of the prohibit; specifically, to was intended laws, requiring state's hazardous waste Respondents did not have notice that their person perform remediation of a haz- failure remediate contaminated soil spill, ardous waste is manifest on the face of prevent passive migration previously supported application the statute and spilled waste would constitute principles. criminal civil law versus subject crime such that would be to the possibility years charges of criminal twelve Ordinarily, except speci- for certain crimes disposal. after the last affirmative act of 16-5-401(1)(a), (2002), fied in section 6 C.R.S. lenity, accordingly Based on the rule of we operate allow the criminal law does ambiguity construe favor the Re prosecution many after spondents prosecution and hold that is act; engages proscribed accused barred the statute of limitations.7 opinion expresses, of the court the rule of lenity operates in favor of a eriminal defen-

IH. CONCLUSION against reading dant "continuous violation" reasons, foregoing ambiguous For the can of an we criminal statute of limita- legislature specific necessarily implied not conclude that intended tions absent a "disposal" passive migration legislative contrary. to include the intent to the On the previously spilled leaked or waste for the hand, liability other civil in hazardous waste purposes of the criminal statute of limitations requir- extends to cases law Colorado's meaning of the term context 7. Our decision is based on the rule of lenity, inapplicable proceed-, doctrine which civil prosecution. other than a criminal ings. express opinion We therefore no on the ground ground material ing remediation when soil the soil into many years many years discovered after water after contamination is discovered spill unpermitted criminally punishable unpermitted hazardous waste has acts of occurred. By characterizing occurred. the day consisting crime as the of each hazard- spilling us involves the The case before environment, in ous waste exists the the Peo- than that occurred earlier hazardous waste ple impose liability despite seek to criminal prosecution and a criminal and convic- 25-15-308(4)(a) prohibition the in section & in obtained the late 1990s. tion that were (b), (2002), punishment on criminal C.R.S. occurred, spilling After the the hazardous run, period when the limitation has and the ground- migrated into the soil and into waste 25-15-8308(4)(b), in authorization section water. (2002), C.R.S. for civil remedial orders in 25-15-808(4)(b), (2002), 8 C.R.S. Section such circumstances. provision at issue in the statute of limitations view, my Assembly In the General has case, provides that the this State of Colorado addressed, resolved, (De- very the and avoided Department of Health and Environment specter People specter the raise-the partment) may issue a civil remediation or- appeals judgment in spill, the court this case rectify the of such a even der to results 25-15-808(4)(a), prevent severely will restrict the State of though section CRS. (2002), punishment. requiring un- criminal Colorado from remediation of would bar Un- 25-15-308(4)(b), (2002), permitted spills. making argument, In der section C.R.S. this Department: People ignore apparent the intent of the Assembly providing in General that the De- years upon after the date which within two partment may require clean-up of con- department disposal, discovers such ground taminated under soil requiring ... may issue an order action to disposal. department long unpermitted spills remediate such after the oc- Assembly provid- under these circum- not authorized curred. The General also administrative, civil, may People prosecute ed that the acts of stances to seek spilling years that occurred more than five penalties such criminal for added). filed, (emphasis charges before in the waste. case were be- hazardous provisions cause section 25-15- view, my provision specifically In an- this 308(4)(a), (2002), prosecu- 8 C.R.S. bar such a question swers the before the court (providing prosecution tion that a criminal may punished appeal: the defendant be crim- brought years within two after the spilling inally unpermitted acts of hazard- Department alleged date the an discovers prior ous waste that occurred to 19867 The years violation or within five after the date People argue "yes" answer is on the occurred, the violation date "whichever oc- every day basis ' earlier"). combination, curs Read these waste exists the environment constitutes a provisions legislative public evidence a clear criminally punishable doing event. new policy uphold, giving that we should effect to so, People largely ignore the General provisions. both Assembly's authorization for a civilremedia- years tion order within two after date the us, unpermitted spill In the case before presence State of Colorado learns of the years occurred more than five before the the hazardous waste in the environment re- prosecution. I initiation of the criminal con- sulting, example, unpermitted an from Assembly clude that the General intended to spill handling, or leak from materials as oc- persons criminally responsible make for un- curred in the case before us. permitted spills of hazardous wastes occur- Assembly quite General clear in ring after the effective date of Colorado's (2002), 25-15-808(4)(b), section act, 2, 1984, 8 C.R.S. hazardous waste November see 25-15-102(8), (2002), section 8 C.R.S. penalties apply do not in connection prosecution spills with the of a issuance civil remediation order barred that occurred five years filing. eriminal cireumstances of a case like one before the At same is, before us-that time, when the Assembly provided for civil General vents, (PCE), including long after Tetrachlorocthene to be issued orders remediation (TCE), injurious 1,1,1, Trichloroethene Trichloroeth- spills, so the hazardous (TCA), recti- Methylene would be upon the environment ane Chloride into the effects fied. underground ground, creating plume deadly pollutants extending long one mile Hoery v. United recent decision Our and two hundred feet wide which continues (2008), joined, States, which I 64 P.3d to contaminate the soil and wa- liability in a case tort imposes continuous company's ter within a mile of the table us here. Alternative- the one before such as facility. Such enormous environmental dam- combination, Department remedia- ly, or in age up longer took for the build the hazardous waste act tion orders government to détect. Aware of the nature liability ground and tort for soil and of the environmental harm caused pernicious effect contamination address wastes, land of hazardous the Gener- spills waste that unpermitted hazardous of punish- rightly decries. Criminal Assembly passed sweeping leg- al broad and the dissent preventing islation aimed at such future day hazardous waste exists ment for each deadly civilly pollution punishing and and is until the contamination the environment up criminally regu- what the Gener- those failed to follow its completely cleaned is not who Asserably al intended. 'latory regime which mandates that those who store, dispose, or treat hazardous waste will conclusion, to the care- I do not aseribe responsible for such until it no waste affirming opinion of the court fully written longer poses a threat to human health or the appeals any the court of judgment of environment. than a statute of limitations re- effect other People bringing eriminal on the striction majority, by its narrow construction of prosecutions the hazardous waste "disposal" the term to mean the initial entirely in opinion's is laws. The discussion act not the continued accumu- of and applicable in this of the facts the context pollutants lation the environ- of the toxic into is, prosecution was that case-that today occurring ment still punishment imposed, brought and criminal cripples legislative mandates of the broad gc- spills that illegally, for hazardous waste Re- Colorado's Resource Conversation and than five before the crimi- curred more ("RCRA"). covery Act the extent filing occurred. To nal "disposal" is read to court's discussion States, By misapplying Toussie v. United beyond of criminal extend the narrow context 90 S.Ct. 25 L.Ed.2d U.S. disagree. I I punishment, prosecution and (1970) continuing of- and the doctrine of judgment ex- that the court's do not believe fenses, majority unnecessarily resorts to far, join judg- I do not in a tends that and lenity ambiguity and creates the rule of have such effect. ment that would analy- Under a Toussie where none exists. sis, language join judg and the nature Accordingly, opinion of RCRA I in the and that the criminal convie- ment of the court knowingly spilling defendants' crime illegal disposal of tions for hazardous allowing it to waste and from a time-barred in this case resulted migrate drinking unabated into waters prosecution. It follows that Assembly intended it criminal such that the General appeals must judgment of the court of Thus, continuing disposal violation. to be a affirmed.1 policy of the statute public considerations investi- encourage prompt of limitations-to BENDER, dissenting: Justice discourage prosecution gation and to in this case case, present company defendant stale crimes-are In this underground hazard- spilled leaked and thou- where one of its officers periods long ous waste was unknowable pounds poisonous chlorinated sol- sands of suggest nothing recognize in this concurrence defendant was convicted of intend I storage improper. separate of hazardous waste incidents those convictions were mischief; and of criminal I without a permit Underground insidiously A. Pollution Plumes infeets human now of time but Designed and the Statute the environment. health and Prevent Them: RCRA the definition Because found, jury by proof in this be case apply under RCRA of limitations the statute doubt, yond a reasonable that the defendants actions, criminal the ma- equally civil and knowingly illegally leaked and jority's interpretation eviscerates civ- narrow pounds dangerous thousands toxic RCRA, con- il and enforcement permit.1 Although chemicals without arguably trary regimen, and to the statute's defendants knew that a substantial amount of to enforce haz- puts authorization the state's seeped ground, the toxic into the chemicals gov- and the federal ardous waste standards point at no did make effort to clean for enforce- financial assistance ernment's recover, result, up, or treat such As a spills. jeopardy because Colorado's RCRA ment the toxins leaked the soil and into longer equivalent to the feder- program is no Subsequent testing the water table below. Hence, respectfully I program. plume al pollution revealed an al long mile of feet most a hundreds wide dissent. originating facility from the Thoro that con the defendants' I would hold because drinking by a taminated water well used disposal per- continue to be last "acts" of away local restaurant less than a mile from petuated today, the defendants' conduct facility. expert the An EPA testified that a offense under constitutes significant amount of the toxic chemicals disposal Because the defendants' of- RCRA. and leaked the defendants current through the time of indict- fense continued ly remain in the the soil underneath Thoro trial, matter, ment and for that contin- and clean-up site. Because there no or has been today, prosecution illegally their ues soil, pollution plume remediation the of the per- without a disposing of hazardous waste migrate continues to into the water table five-year mit today. is not barred

of limitations. fact-pattern typical Such a of under See,

ground pollution eg., cases. United (4th Inc., v. Waste Indus. 734 F.2d 159 States Background I. Cir.1984); Price, United States my that cur- To understand conclusion (D.N.J.1981). F.Supp. 1055 Like the instant pollution from migration of toxic rent case, discovery underground pollution defendants' site constitutes plumes usually following in the man occurs statute, provide I Colorado's RCRA brief ner. background and the statu- of this case residents, opposed any govern- Local as to particular, explain I tory scheme. public agencies, typically mental or are general underground pollution nature pollution. first to discover Because of plumes, purpose of Colorado's RCRA underground pollution plumes, nature of CERCLA, statute, distinguished that as from agen- local law enforcement or environmental prevent type of designed to invasive cies are aware of environmental haz- here, damaging harm that occurred investigate. ard and thus have no reason to knowledge defendant such Instead, Newman's quality people notice a decline in the color, harm could occur as result of his actions drinking through of their water foul taste, they and failure to act. suffer illnesses or side smell example, continuously employee defendant Newman testified that leaked One For months. full of on the rail pump pounds railcars toxic chemicals sat stated that the leaked thousands ground. spur at Thoro and leaked onto the One taking possible into TCA. Even account losses approximately railcar lost half of its such evaporation due to left in residual chemicals Methylene cargo Chloride-approximately six railcars, substantial, unexplained there were loss- pounds. other thousand Newman and Thoro instance, es. one set of Thoro reports faulty employees pump also that a used testified that in 1979 Thoro six tons of TCA. showed lost storage tank transfer TCA to and from the blisters, boils, drinking and stomach to reach the water well at the Arva- effects such Thus, of well wa- though use da restaurant. even distress attributable the last facility "act" of at the case, Thoro oc- than In this a local less ter. restaurant hydrologists curred the EPA facility complained testi- from the Thoro a mile pollutants spilled fied at originating leaked quality water about drinking Subsequent water well. from its through time continue to flow unabated drinking testing that the water well revealed drinking table and into water wells. TCE, with unsafe levels of was contaminated See, Price, e.g., F.Supp. (finding at 1061 | TCA, Methylene although PCE and Chloride. illegal disposal the last "act" of occurred the hazardous waste contin- significant contamination Onee and unsafe ued to leak into soil from the contamina- found, investigators the con- levels are follow later.). tion site nine Individuals who "upstream" through tamination the under- expose drink water from these wells them- ground water flow to determine the source. significantly selves to increased risks of de- Here, investigators contamina- followed the cancer, conditions, toxic and birth drinking water tion from the restaurant's veloping See, Inc., eg., defects. Waste Indus. well water and de- TCE, TCA, (high at F.2d levels of the source of the chemicals such as termined pose unacceptably can high TCA TCE Methyl PCE and Chloride contamination was neurological damage risks of in children and facility. the Thoro any age). cancer in humans of investigators determine the source When contamination, groundwater hydrolo- prevent just harm, type To invasive gists pollutants determine how the moved RCRA, Assembly passed the General see quickly they through the soil and how 25-15-8327, §§ (2002), 25-15-8301 8 C.R.S. public moving protection "ensure health and once reach the water table. Hydrologists study the distribution and char- safety and the environment." 6 1007- C.C.R. sand, 3, 260, acteristics of earth materials such as Purpose.2 Part Statement of Basis and clay, and solid rock that lis below the surface Colorado is authorized enforee its own ground. can only Such characteristics de- program RCRA if it is consistent with termine how the toxic chemicals move §§ program. the federal 42 See U.S.C. 6901 layer of materials below (2002)(federal program). to 6992k RCRA ground surface to reach the "water table" or scheme, statutory Under the federal RCRA underground the flow of water. When replace primary states the EPA as the en table, liquid region toxins reach the water permitting authority. 42 forcement and See plume begins. or of contamination 6926(b)("Such § U.8.C0. State is authorized to plume groundwa- follows the direction of the carry program out such in lew the Feder underground ter flow. The movement program al ... and to issue and enforce pollutants through contaminated the water permits storage, dispos for the treatment or table is slow but continuous. ....")(emphasis al of hazardous waste add ed). exchange financial case, federal assis example, hydrol- In this EPA tance, laws that states enact hazardous waste ogist testified that chemicals in toxic the soil equivalent prog are to the federal RCRA facility-in at the Thoro concentration levels program Id. RCRA Colorado's be higher ten to a thousand times than levels ram.3 drinking considered safe for water-were § came on effective November 25- 15-102(8). Any moving into the water table and less action taken the State of pursuant federally to its authorized Colorado day through than a foot a system. pollutants emanating program hazardous waste "shall have the approximately twenty years from Thoro took same force and effect as action taken 6902(a)(4)(2002)(primary § 42 2. See also U.S.C. ("Such 1007-3, 3. See 6 Part 260 full state C.C.R. purpose program of federal RCRA was to assure authorization to conduct the hazardous waste management practices regulatory program granted only upon that waste "hazardous can be protects program equiva- conducted in a manner which human determination the State is environment."). added). EPA.")(emphasis health and the lent to that of the Co., ("Because Eng'g v. Power United States [EPA]." F.Supp.2d at 1159 the definition of (D.Colo.1998), aff'd, "leaking," includes the word dis- F.Supp.2d (10th denied, Cir.1999), .-.. posal cert. occurs not when hazardous F.3d 1224 120 S.Ct. 146 L.Ed.2d U.S. deposited ground is first onto into or 6926(d)). § (2000)(citingto 42 How water, U.S.C. migrate when but also such wastes location."). ever, disposal from initial if EPA determines the state is program in administering its accordance not disposal requirements are consid RCRA's program, it re federal RCRA with the grave," ered "cradle because the hazard authorization from the quired to withdraw management system regulates ous waste 6926(e). § program. state U.S.C. perpetuity-from hazardous waste point generated longer it is until it will no proper management promote To endanger human health or the environment.4 waste, and thus reduce the need Thus, operators disposal all and owners future, action for corrective "treats, any facility comply reporting, with strictly regulates facilities must moni toring, inspection requirements, follow stores, disposes" of hazardous waste. treatment, only approved storage dispos The term one of 25-15-8308. methods, permit require fulfill al all (as in the terms com- the broadest "store") poses longer ments until the waste no pared to "treat" includes: to human threat health or the environment. injection, discharge, deposit, dumping, 1007-3, 6 C.C.R. Part 100. See leaking, placing any spilling, hazard- pro- any Consistent with RCRA's mandate of land or ous waste into or water so any environment, hazardous waste or constitu- tecting such human health and the may enter the environment or prohibit- ent thereof land hazardous waste is discharged the air or emitted into into ed unless it can be shown that there will be waters, including ground waters. migration no of such waste: disposal may method of land 25-15-101(8). [A] be, . protective to be of human determined Courts and commentators have determined health and the environment for a hazard- nearly "dispos- identical definitionof that the ... ous waste unless ... been dem- has program al" the federal RCRA is in- ... degree onstrated to a reasonable range meanings, tended to have includ- certainty, there will be no ing only passive active conduct also not disposal of hazardous constituents from the reposing such as the of hazardous conduct long unit ... for as as the wastes remain subsequent its movement waste and hazardous. See, eg., the environment. Waste Indus. added).5 § 6924(d)(1)(emphasis 42 U.S.C. Inc., 164-65; O'Reilly F.2d at 1 James T. Buenger, Super- B. RCRA and and Caroline prevent migration To of hazardous § A with Practical Guide 2.5 waste and thus to Forms protect human health and fund: (24 ed.2002). notes, environment, majority imposes As RCRA substantial overwhelming penalties number of federal courts have civil and criminal on those owners interpreted "disposal" operators illegally RCRA civil and dispose actions who of haz- migration permit. Although to include wastes ardous without a waste the state govern- acts lieu of the federal by improper disposal caused defendants' See, Co., practices. eg., Eng'g impose Power 10 ment to enforce and RCRA such Timothy Shanley, Applying migration 4. E. a See Strict Limi- concludes that there will be "no Period to RCRA tations A Toxic disposal hazardous constituents from the unit ... Enforcement: hazardous."); long Results, with 10 Pace Envtl. for as as the wastes remain Hazardous Concept L.Rev. O'Reilly, Superfund: A RCRA and Practical Guide ('The § disposal with Forms 4:8 few land sites Waste See also Treatment Council v. Hazardous allowed to take untreated will wastes need to EPA, United States (U.S. 910 F.2d show that will be no from the there 1990)(h01d1ng disposal land ' long constituents, site of hazardous for as as the protectlve be found of human health may hazardous."). wastes remain the environment" under RCRA if the EPA Attorney may bring "cit- The citizens still State General enforces penalties, private provisions. felony pursuant to the federal RCRA criminal It is a to know izen suits" ingly dispose hazardous waste without the state's hazardous to enforce program Sterro Club waste standards. See 25-15-810(1)(b),(8). § permit. court A Chemi- F.Supp. Handling Corp., anyone guilty knowingly sentence found cal (D.Colo.1993). The definition dis- disposing per of hazardous waste without a broad pay fifty mit to a fine of more than equally to civil and posal applies criminal violation, RCRA actions. day thousand dollars for each or by imprisonment years, not to exceed four or | Department of Public Civilly,the Colorado imprisonment.6 § both such fine and 25- the Environment acts lieu of Health and © 15-310(8). actions, Similar to civil RCRA pursuant legislation federal the EPA mitigate severity criminal violators can may impose penalties It enforce RCRA. penalties they self-regulat criminal if had & waste facil- operators or of hazardous owners compliance program environmental flegally dispose of such with- ities that ~ voluntarily them allowed disclose Department impose permit. can out pos remediate environmental hazards before up fines of to fifteen thousand administrative ing a threat human health and the envi 25-15-809(1). day § per per violation. dollars (b). § 25-15-809(5)(F),(g), ronment. Or, penalties, in lieu of administrative Department may penalty seek a civil of twen- brought civil and eriminal actions un Both per day per ty-five thousand dollars violation. subject der to the RCRA same statute subject or civil Id. Persons to administrative Any limitations. action under Colorado's mitigate penalties can those under RCRA requirements must commence within previously if penalties had established years upon two after the date which the self-regularized comprehensive environ- Department alleged discovers an violation or and, compliance program, as a result mental years upon within five after the date which voluntarily program, disclosed the of such a occurred, alleged violation whichever potential environmental hazards existence 25-15-308(4)(a). date occurs earlier.7 If knowledge prior Department's to the the state discovers violation good Department faith to worked with would be barred the statute of limita remediate the hazards. See 25-15 tions-tie., stopped "leaking" the site more (Lh). purpose of such "miti- years than earlier-the cannot im five state gating opera- factors" is so owners administrative, pose any pen civil treat, store, dispose who of hazardous tors alties for such a violation but can discover, voluntarily properly waste will dis- the violator to remediate the area and order expeditiously violations close and correct be- any consequéneces of such a hazardous waste they endanger human fore health and leak if it does so within two of discov Irrespective whether an ad- environment. 25-15-808(4)(b). ery. § entered, or civil ministrative order RCRA, purposes in both its and enforce Department precluded referring is not from regimen, distinguishable from the disposal pros- ment the same violation for criminal ecution, 25-15-809(2). Comprehensive Response $ Environmental _ knowingly dispose 6. It is also a federal offense to context, in both the civil see 28 U.S.C. actions permit. 42 (five-year hazardous waste without a § civil 2462 statute of limitation for 6928(d)(2)(A). § U.S.C. A court sentence actions); Ecology v. American Envil. Glazer fifty such criminals to fines of thousand dollars Servs., (E.D.Tex.1995), F.Supp. 894 1044 day imprisonment up for each of violation or for § 3282 and the criminal context. See 18 U.S.C. 6928(d). years. § to five U.S.C. (five-year period statute of limitation for criminal White, proceedings); United States v. program a The federal RCRA does have (E.D.Wash.1991); generally, 873, 886 see F.Supp. statute of limitations for either civil or criminal Nagel, and the Stat- Doris K. RCRA Enforcement eg., Meghrig See, Inc., Western, actions. v. K.F.C. Limitations, Rep. 10431 ute 18 Envtl. L. 479, 486, 1251, 134 516 U.S. 116 S.Ct. L.Ed.2d (1988)(discussing both civil and criminal statute However, many applied courts have RCRA). limitations under general provisions statute of limitation to federal Compensation Liability §§ and Act.8 25-16- who disposed of hazardous waste so as to 25-16-810; §§ 101to U.S.C. 9601to 9675. prevent type of insidious purposes: CERCLA has. two broad remedial occurred here. clean-up to facilitate of hazardous waste Defendant integral part Newman was an responsible that those sites and to ensure for during of Thoro's business time in which pollution pay clean-up. costs The first continuously leaked and tons of goal accomplished by the establishment of TCE, TCA, Methyl PCE and onto Chloride government's "Superfund" pay federal ground. early seventies, during In the clean-up. accomplish goal for To the second college, Newman worked summers at Thoro. making responsible pollution for those graduating college After from New- costs, pay imposes CERCLA strict liabil man started full-time at Thoro. He started ity any persons operated who owned or on operator," "terminal which involved property at the time of of hazardous learning handling the business of the toxic 9607(a@)@). waste. U.S.C. Unlike Specifically, chemicals. was re- Newman RCRA, CERCLA is retroactive statute. sponsible pumping the chemicals from imposes liability poten strict CERCLA and storage railcar to pumping tank and then tially responsible parties pay must for the storage them from the tank to the trucks. clean-up but can sue for contribution from operator, As terminal Newman received RCRA, others. Unlike CERCLA includes specific from instructions Dow how about the "innocent defense for landowner." This dangerous handle the toxic and chemicals. if, defense can be asserted at the time of instructions, handling its written Dow cau- know, purchase, the defendant did not and no "spill, tioned Thoro about leak and know, reason to that hazardous waste was procedures." procedures indicted that property. disposed of on the 42 U.S.C. spills, mop wipe for small up, Thoro should 9601(35)(A)@M. RCRA, CERCLA Unlike up, up liquid immediately. or soak includes civil enforcement. U.S.C. large spills, employees Dow instructed Thoro § 9609. liquid, to contain the transfer it to a closed container, keep metal and the contamina- Enowledge B. Newman's Defendant supply. tion out of the water Requirements and Its RCRA By 1978, Newman continued his role of found, doubt, jury beyond A a reasonable operator terminal but also trained and assist pro- that the defendants the eriminal violated employees operators. ed other as terminal by knowingly disposing visions of RCRA By late Newmanwas Vice-President of permit. hazardous waste without a ree- job According description Thoro. to a supports ord conclusion Defendant Newman related to another Thoro site Newman was aware and knew about permit, responsibil had its RCRA Newman's consequences spilling and hazard- (1) sessions, attending ities were: danger ous waste and the all school to human health classes, knowing regulations all all by allowing and the environment RCRA them to (2) thereto;9 migrate underground. changes monitoring on Based his work education, experiences, training, checking site Defen- location and field conditions (8) process reports; physicallyinspecting dant Newman knew the technical the site (4) proper disposal procedures inspectors agencies; checking and the strict with requirements that imposed maintenance, operation, those mechanics of 8. The high degree state is authorized compliance to enforce the federal and a concern with 25-16-101, program. §§ CERCLA See 25-16- changing the scene. 103. necessary In order to do this it is that our operations! personnel [sic] be educated and "Continuing Policy" Thoro's Education stated: kept abreast of the state we of the art. While changes updated all regulations Like make and other informa- management anticipates most every operations Recovery that the tion available to each and Resource. Conservation and employee, undergo many changes necessary Act we [sic] will feel that it that all (RCRA) them, people go conditions warrant it continue of our off site to a or a and will seminar management's high to be possible aim to maintain a school as often as is and educational. question the of whether RCRA's definition of interfaces with chemi conditioning as well as migration includes the hazard- (5) safety insuring proper operators; and cal occurring today. ous that I con- gear procurement, protection equipment and clude that it does. maintenance. Consistent with operation, and continuing policies, Thoro re education its question turns on whether the defen fifty received over ported that Newman guilty continuing dants are of a offense. training: sixteen hours of hours of RCRA complete upon Such an offense is not the Hazardous, Training Materials on D.O.T. act, perpetu to first instead continues Regula at a Regulations; eight hours RCRA ated over time. See v. De La United States Seminar; Regulations tory hours for sixteen (11th Mata, Cir.2001); 266 F.3d eight for an Operators; hours . for Terminal 21 Am.Jur.2d Criminal Law Seminar; and Hazards seven Environmental (2002)("[A] continuing offense is continu Preparation for a of RCRA hours Seminar ous, act in unlawful or series of acts set Applications. single impulse...."). If motion the underground pollutants consti Vice-President, wrote Newman As Thoro's "disposal that tutes a offense" continues to Department Health after to the Colorado day, will not then the statute limitations pro- date of Colorado's RCRA the effective illegal run the conduct because continues. Department to Thoro gram asking the send 16-5-401(4). §See regulations concerning recently published the at Thoro's wastes. Records found applied question in the As be- case, correspondence from Arvada site included though defendants' comes: even the last Department of the EPA and the Colorado: "act" initiate a occurred did per- regulatory and regarding Health RCRA per- course of conduct that continues to be requirements and an "Overview of mitting so, today? they may petuated prose- If Recovery and the Resource Conservation civilly criminally cuted because their of- indi- Act." The Overviewcautioned today fenses thus RCRA's occurring, companies disposed who of hazard- viduals or five-year oper- statute of does not limitations permit in violation of ous waste without prosecutions. ate to bar To determine subject significant civil and may be to RCRA just recognizes a con- whether RCRA such day penalties per criminal that are assessed offense, tinuing "disposal" I turn to the Su- of violation. continuing analysis preme offense Court's applied Toussie and the cases have experiences, background, Given Newman's Tousste the context of RCRA. training, jury verdict established failure to remediate or he knew his Toussie, Supreme held that Court clean-up spilled and leaked waste could failing regis- to the defendant's conviction penalties. For over a dec- result applicable ter for the draft was barred RCRA, passage after the Newman ade at statute of limitations. 397 U.S. dangerous hazardous and knew about Although government did not S.Ct. 858. that he nature of the toxic chemicals eight years after the defendant until indict responsi- ground. As the and leaked into birthday, argued eighteenth his officer, knowledgeable he took no ble and Military Training and Service Act Universal polluted pre- soil or action to remediate ("Draft Act") duty imposed migrating into dangerous vent toxins from twenty-six register age and thus until reaching nearby underground timely. Supreme Court indictment was drinking water wells. rejected argument. The government's public policy reasons be- Court stressed Continuing II. The Doctrine of Offenses protect individ- hind statutes of limitation: the Context prosecution the facts have against after uals danger pun- away; Having explained background of this faded to minimize statutory scheme that is past; case and the RCRA in the distant ishment for acts encourage government officialsto investigate designed prevent type here, activity. at promptly suspected illegal I Id. pollution plume that turn to occurred 1208

114-15, Although Law, (1996).10 728, 858. LQ. 90 S.Ct. Court tal 28 Eeol. T57-58 that eriminal statutes of limitation concluded examples Common include stor liberally in age slowly favor of re- tanks that continually should be construed leak that pose, recognized continuing offenses it hazardous waste into the soil or the continual spread hazardous waste under cireumstances. in certain exist ground systems. Id. Such harms are that in the context held of erim- The Court subtle, gradual often events and detection of limitation, there are two in- inal statutes requires them complicated extensive and a court can find in which that crime stances sampling. MacAyeal, See James R. The Dis (1) continuing offense: qualifies as a when covery Rule and the Continuing Violation language of the substantive crim- explicit Exceptions Doctrine as to the Statute (2) conclusion; compels such a or inal statute Limitations Civil Environmental Penal for the erime nature of involved is such when the Claims, 589, ty 15 Envtl. Va. L.J. 692 assuredly Congress must have that intended violations, RCRA continuing it treated as one. Id. at involve through underground hazardous waste soil 115, Applying two-pronged 90 its S.Ct. water, particularly susceptible are to be Act, Draft test to the Court concluded ing unknowable harms: language "no in this Act that there was [MJajor violations the Clean Air Act and prolonged clearly contemplates a course of 120, readily Clean Water Act can often be 90 conduct." Id. at S.Ct. 858. For the EPA, detected state environmental prong, second the Court reasoned that there agencies, groups citizen because of "nothing registration inherent the act of and/or is mandatory monitoring requirements failure to do itself makes so continu- which 858; unpermitted and because releases into the 122, ing crime." Id. at 90 S.Ct. usually air and water can be traced back to guidance set forth Consistent with By contrast, the violator. violations of numerous federal Court Toussie may immediately RCRA not be discovered nature have held of various courts may operated because sites for continuous, despite the absence of offenses years many without noticeable contamina- explicit statutory language that the offenses tion. "continuing." Bailey, United States v. Lin, (internal LQ. 23 Ecol. at 757 394, 418, citations 624, 444 100 62 U.S. S.Ct. L.Ed.2d omitted). (1980)(escaping custody); 575 from federal cases, unique Blizzard, 100, Given the nature of RCRA United v. 27 F.3d 102 States (4th Cir.1994)(receiving concealing stolen continuing courts have held that the offense government property); United States v. applies prosecutions Gar doctrine of environ (9th cia, 340, Cir.1988); 854 F.2d See, mental eg., crimes. United States v. (kid napping); Aliperti States v. United White, (E.D.Wash. 878, F.Supp. 886-87 142, (E.D.N.Y.1994)(multi-year 1991); Brothers, F.Supp. State v. No. 2001-Ohio- (Ohio Field, App. extortion); 2001 WL at *3 United States (S.D.N.Y.1977)(eriminal F.Supp. RICO Dec. 2001)(holding that under Ohio's statute, violation). barrels waste into continuing the soil constituted dis analysis offense in Towussie posal applicable peri thus the limitations particularly well-suited for environmental run). begun od had not cases, RCRA cases. such the harm is "inherently long periods Indeed, unknowable" environmental un- defendants have Inherently successfully time. unknowable analysis harms occur relied the Toussie unlikely anyone attempts when it is will discover escape responsibility fllegally period expires. them storing disposing before the limitations or of hazardous un- Lin, White, Application See Albert C. the Con der F.Supp. RCRA. See at 886- tinuing Doctrine to Violations Environmen 87; Elees., Inc., In the matter Harmon Shanley, 10. See begin also 10 Pace Envtl. L.Rev. at 276 take before such wastes (''The discovery improperly disposed groundwater aquifers, present stored or leach into harm."). hampered by of hazardous waste is the fact that some other identifiable environmental

1209 1994 WL practices indefinitely No. continue 730509, drinking EPA ALJ LEXIS 835overruled 1994 can contaminate water or the food injure (citing chain the environment. 988, Id. F.Supp.2d grounds, 19 on other 998 1491, H.R.Rep. Cong., 94th No. 2nd Sess. 3- (W.D.Mo.1998). per- The Harmon case is 4, 11, in reprinted Cong. 1976 U.S.Code & author is an administra- suasive its because 6249). 6238, 6241, Admin. aAs re- judge specializes environmen- tive law who News sult, Congress mandated the issuances of analyzed RCRA under the tal cases. He permits disposed so that such waste will be and concluded that dis- Toussie framework only designated specifically for that sites permit posing waste without a of hazardous purpose. Id. continuing is a violation. limitations, Concerning the statute of a civil and Although this RCRA case was played important ALJ reasoned that it an prosecution, judge distin- not a criminal penalties, role in the determination of even First, the violation guished Toussie continuing. a violation is Id. at when RCRA single from the act of fail- Toussie stemmed five-year held that the *42-48. He statute of register provide notification as re- ing to penal- the assessment of limitations allowed hand, by the- other quired the statute. On five-year period prior for the ties from disposal violations resulted the RCRA filing complaint. of the RCRA Id. The ALJ operation of a hazardous waste ongoing analysis, concluded that under the Towssie permit. The RCRA offense landfillwithout recognizes continuing "disposal" vio- RCRA failing act to file for a simply was "not an lation that is not the statute of barred noncompli- permit but a state continued limitations. by treating, storing, and ance with RCRA appeal, Appeals On Environmental per- without a disposing of hazardous waste ("EAB") affirmed the and held Board ALJ *32, mit." Id. at The ALJ cautioned analysis, that consistent with the Toussie improperly dis- when hazardous waste is imposes "continuing language obli- RCRA's property, on the it "insidi- posed and remains gations" disposing on those of hazardous groundwater aqui- ously the soil and affect[s] waste because of the serious consequences (citations omitted). As a fers." Id. at *88 improper handling procedures. In re Har- result, appro- until the the violation continues Inc., RCRA-VII~91-H-0087, No. Elees. mon priate clean-up are erected or measures 133778, 6, App. EPA 1997 LEXIS WL occurs. Id. Consistent with such remediation (Envtl. 1997). 24, Appeals at *66 Bd. March explicitly pro- interpretation, the statute persons The EAB concluded that those who *40-41; penalties. per day Id. at vides permit requirements should violate RCRA's person § 6928(g)("Any see also U.S.C. severe, daily escape Act's sanctions any requirement of this sub- who violates to vio- merely because have continued chapter shall be liable to the United States amount of late the law for a considerable penalty in an amount not to exeeed for a civil application *67. of Tousste Id. at time.. $25,000 day violation. Hack for each such was affirmed the context of RCRA shall, purposes of this such violation Harmon, District Court. See United States subsection, separate viola- constitute F.Supp.2d aff'd, at 191 F.3d added). explained tion.")(emphasis The ALJ (8th Cir.1999). daily penalty, there that for there to be a daily corresponding must be Migration Hazardous Waste III. The EPA ALJ violation. WL Continuing Offense Constitutes LEXIS at *41. Disposal under Colorado's RCRA Statute Second, legislative the ALJ reviewed history and concluded that Con- of RCRA Baged set forth Tous- framework gress unregulated hazardous apply intended that and cases such as Harmon sie prevented management should be be- waste context, Tousste in the environmental consequences recognizes of unremediated dis- the con- cause the I would hold that RCRA disposal to include tinuing offense of posal until and unless remediated. continue continu- waste. The ex- Unregulated of hazardous Id. at *85. plicit language of Colorado's RCRA statute Colorado's RCRA statute must contain the the nature "continuing" compels word in order to that the a conclusion and of find such erime involved is such General contemplates punishment of con- Assembly, following guidance of Con- Instead, tinuing offenses. Towsste's first provisions gress enforcement and the broad prong requires examining whether the lan- scheme, statutory intended that of the RCRA in guage Colorado's RCRA statute contem- Toussie, continuing one. it be treated as plates prolonged course of conduct such as 115, Accordingly, at 90 S.Ct. 858. 397 U.S. 120, continuing disposal. at 897 U.S. 90 S.Ct. though defendants' last "act" oc- even Act in 858. Unlike the Draft such Toussie 1985, they I hold that initi- would curred language is found in the broad definition of conduct that continues to ated a course of be disposal provision daily penalties. and for today punished perpetuated to- day. "disposal" using RCRA defines a wide va Thus, diverge majority I from the which riety punish of terms so as and to deter explicit holds that a broad and enforcement types practices: discharge, depos various of pol designed to deter environmental scheme it, injection, dumping, spilling, leaking or "ambiguous" and luters is nonetheless rules placing any of hazardous waste into or on pursuant the eriminal defendants favor of 25-15-101(8). land water. The def lenity. prohibition no to the rule of There is "passive inition does not include the terms statutory against giving full words However, migration" "migrating." or even they meaning in the context which reasonably "leaking" the term mi Court, includes 918, People used. v. Dist. 718 P.2d (Colo.1986). lenity gration, "passive" should per The rule of either or "active." A statutory ambiguity, only to resolve used actively son can allow a rusted barrel or by disregarding the clear not to create Or, storage container to leak. hazardous legislative purpose which the statute was waste, action, through no overt can "leak Forgey, People enacted. v. 770 P.2d through particular area" such as soil. See (Colo.1989). public A welfare statute such as Webster's Third New International Dictio designed pro is Colorado's RCRA statute nary Consistent with the tect human health and the environment and interpretation of federal courts in civil narrowly. should not be construed See Unit actions, language imply RCRA such does not Laughlin, F.Supp. ed States ambiguity.11 contrary, diversity On the (N.D.N.Y.1991). meanings "leaking" diversity of and the Explicit Language general unnecessary A. terms makes it Colorado's RCRA Statute Provides Continu- passive choose between an active or inter ing Disposal Offenses pretation "disposal" of the term because it Thus, includes both.12 because RCRA's defi assertions, Contrary majority's to the requirement no under Toussie that only there is nition of includes not active argues majority 11. The also that the term "dis- but did not know or have reason to know at the posal" ambiguous disposed is because have courts con- time hazardous wastes had been eg., CERCLA, See, Harbor, cluded that which utilizes Carson 270 F.3d property. ("Were adopt interpretation at 882 we to definition, identical the term does not include See, "disposal" encompassed passive passive migration. eg., all Carson Harbor Vil- subsoil migration, innocent landowner defense lage, Ltd. v. Unocal 270 F.3d Corp., eliminated."). (holding contamination would be The innocent essentially landowner defense is not available in RCRA through ac- is not in CERLCA ac- soil tion). tions. analysis is not to our CERCLA instructive vastly case. CERCLA a this RCRA is different imposes liability statute that strict and is civil ne., 164-65; Waste Indus. 734 F.2d at designed up past O'Reilly, Superfund: to clean or remediate contami- RCRA and A Practical Guide RCRA, hand, prospective (explaining nation. on the other with Forms 2.5 that the definition only penalties. disposal, purposes and includes with the civil consistent CERCLA, Under is construed not to range meanings, RCRA, is intended to have a passive migration large part including passive include because it active conduct ' reposing would de- eliminate the "innocent landowner conduct such as the of hazardous waste parties purchased property subsequent through fense" for those who its movement the envi- properly handle these have failed to re such as the passive conduct conduct but period of time chemicals for a considerable its waste and subse posing years. at no one of their acts for Id. told through the environment quent movement *67. today, language occurring RCRA's continuing disposal offenses. contemplates migrat- prevention of hazardous waste offense, with a Consistent protect as to the environment so penalties. daily criminal imposes human health is at the core of RCRA's dis- knowingly of convieted defendants Criminal procedures. grave" to re- posal The "cradle per- waste without disposing of hazardous operators of gime means that owners and by a fine of not more punished mit "shall be dispose are facilities that of hazardous waste day fifty for each than thousand dollars long- until it is no responsible for such waste 25-15-810(8); also 25-15- see violation." recognizes that when er hazardous. RCRA negli- acting with criminal 310(2)("any person migrate is allowed to dan- by a fine of not punished ... gence shall be environment, through re- gerously those twenty-five thousand dollars than more migration will held sponsible for such be added). violation.")(emphasis day each un- for their inaction accountable contemplates that for Unquestionably, RCRA stops. The nature of the defendants' til it offenses, one-day they not at least some inactions-spilling and actions and daily penalty, there to be events. that it would con- tons of hazardous waste so daily corresponding or con- must be a there tinually table migrate 730509,1994EPA tinuing offense. WL unabated-is such that General Assem- Thus, *41. unlike the at ALJ LEXIS bly considered a intended that would be in there is question in Draft Act Toussie continuing offense. language in RCRA statute explicit Colorado's prolonged course clearly contemplates My the word to construction of conduct. explicit migration-based on the lan include guage and the of RCRA nature Disposal Nature of the Crime B. The nullify public policy rea erime-does not Assembly the General is Such limita five-year statute of sons behind the Continuing Mi- It Include Intended to nullify nor does it the statute itself. tions gration of Hazardous Waste Toussie, primary purposes Under wrong that does not Even if I am RCRA in eriminal context of limitations statute prong there is satisfy first because Tousste's against protect individuals facts were to a "con- explicit language no danger of away, minimize the have faded to violation," fully satisfies tinuing offense or past to in the distant punishment for acts ~ prong. the second to investi encourage governmental officials activity. suspected illegal gate promptly case is not disposal offense this 114-15, consider 858. Such at 90 S.Ct. U.S. permit. failing to for a simply an act of file in the of continu are lessened context ations Rather, upon a the defendants set course underground hazardous ing and current by fail- noncompliancewith RCRA continued Indeed, government offi waste migration. danger- properly dispose of toxic investigate rarely position to in a cials will leaked chemicals. Once the defendants ous pollu of an or even be aware deadly pollutants into tons of addition, interpreted plume. tion continuing obligation un- they had a ground, case, of limita the statute was the state der to see that contamination limiting plays important role tions treated, properly up remediated or cleaned may penalties be as longer period for which a threat a manner that no time posed Steel, See, v. WCI eg., United States sessed. Har- the environment. human health and (N.D.Ohio Inc., Elecs., Inc, EPA F.Supp.2d mon 1997WL RCRA, the five- 1999)(holding defendants App. at *66. The LEXIS limitation limited the assess- liability merely year escape because should ronment); Eng'g at Co., Power 10 F.Supp.2d years prior to five to the Persons penalties

ment of responsible such violations will action). applied likely filing self-regulating As this case less initiate com pliance programs that will enable them to state, may argued and as state against penalties the de- voluntarily, properly, seek criminal discover disclose five-year period prior for the time expeditiously any fendants correct violations before filing to the of the indictment. by leaking the contamination caused hazard endangers ous waste human health and the 25-15-8308(4)(b), prohibits which Section environment-contrary explicit goals to the outside the statute state actions commenced Indeed, majority's of the Act. narrow period allows state remedi- of limitations interpretation also limit the orders, apply al does not here because the ability private citizens enforce the continuing disposal defendants' violation- program state's in civil "citi hazardous waste continuing leaking of hazardous waste brought in zen suits" federal court because of at the into the water table below-eontinued ambiguity majority's the new between the time of indictment. This action was com- interpretation "disposal" under state law limi- applicable menced within the statute of compared interpretation to the of the term period tations time because the defendants' under federal law. See Sierra Club Chem perpetuated continuing, illegal a course of 91-C-1074, Handling Corp., ical No. present at of in- conduct that was the time (D.Colo.1998)(relying WL at "1 today, present is dictment and statutory provisions pri Colorado's RCRA example, if had For the defendants taken suit). vate citizen stop action in 1990 to of hazard- interpretation such a Because narrow con- facility, the Thoro then the ous waste from purposes travenes the broad and enforce- begun have to statute of limitations would ment scheme of RCRA and the federal Thus, run after at that time. the state analyzed "disposal" courts that have the term any imposed penalties-ad- could not have context, arguably grave in the civil risk ministrative, civil or criminal-on the defen- government exists that the federal could re- illegal violation their dants' because voke Colorado's federal financial assistance "leaking hazardous waste" had conduct and RCRA's enforcement authorization be- years ceased more than five earlier. Howev- program longer equivalent cause our is no to er, provisions of section 25-15- pro- and consistent the federal RCRA with 308(4)(b), the state could order the defen- gram. dants, discovery, two within clean- up fully and to remediate the area and Overall, because RCRA's definition dis- underground systems water affected waste, posal includes of hazardous illegal disposal of waste. hazardous 25-15- effectively punish the state can environmen- 808(4)(b). illegally dispose tal defendants who of haz- interpretation is also consistent with ardous waste without a

My permit and allow it to majority sys- of courts that vast have held enter the soil and Otherwise, "disposal" given the term in civil ac tem. RCRA the nature of most only not inherently tions includes when hazardous waste RCRA actions that un- involve ground deposited into the but also knowable harms, polluters illegally who dis- first migrate pose when from their initial permit such wastes of hazardous waste without Co., Eng'g likely location. will escape prosecu- See Power criminal and civil F.Supp.2d at 1159. Given that the go definition tion because the contamination will undis- and the statute of statutory limitations covered until well after the limita- actions, Lin, apply equally period. civil I L.Q. tions See 23 Ecol. at 757. implication majority's prosecuting avoid the serious The state would be limited to opinion only polluters that civil actions will now those whom discovered disposal." storage limited to instances of "active with or containers areas that were See, Brothers, Improper disposal practices leaking." eg., result "actively "passive migration" longer punish will at *2. It no WL 1602692 would seem absurd to civilly eriminally. prosecute criminally civilly only able the Act either those who dangerous haz- contain foresight to had subsequently leaked and

ardous waste who leaked hazard- polluters prosecute any at- ground without onto

ous waste it, treat it or up, recover

tempt to clean problem. Such authorities

inform language and clear contrary to the

result the RCRA policies behind

public welfare

statutory scheme.

IV. Conclusion above, I would the reasons stated appeals judgment the court

overrule felony convie- defendants' reinstate the disposing knowingly

tions for permit.

waste without say that Justice Chief

I am authorized MARTINEZ and Justice

MULLARKEY

join in this dissent. of Colorado, of the State

The PEOPLE , Plaintiff-Appellant GREEN, Defendant- Adrian

Brian

Appellee.

No. 03SA5. Colorado, Supreme Court of Attorney, Gor- District Smith, M. Jeanne Banc. En Denison, Attorney, Deputy District don R. June Cecil, Deputy District Brien D. Attorney, Colorado, Attorneys for Springs, Colorado

Plaintiff-Appellant. P.C., Travis, Wayne E. &

Anderson Colorado, At- Anderson, Springs, Colorado Defendant-Appellee. torneys for delivered MULLARKEY Chief Justice Court., Opinionofthe interlocutory appeal, bring People 4.1, challenging the trial pursuant to C.A.R. goods suppression of stolen court's household defendant, from the residence seized

Case Details

Case Name: People v. Thoro Products Co., Inc.

Court Name: Supreme Court of Colorado

Date Published: May 19, 2003

Citation: 70 P.3d 1188

Docket Number: 01SC419

Court Abbreviation: Colo.