People v. Thoro Products Co., Inc.

Justice BENDER,

dissenting:

In this case, the defendant company and one of its officers leaked and spilled thousands of pounds of poisonous chlorinated solvents, including Tetrachlorocthene (PCE), Trichloroethene (TCE), 1,1,1, Trichloroeth-ane (TCA), and Methylene Chloride into the ground, creating an underground plume of deadly pollutants extending one mile long and two hundred feet wide which continues to contaminate the soil and underground water table within a mile of the company's facility. Such enormous environmental damage took years to build up and longer for the government to détect. Aware of the nature of the environmental harm caused by the land disposal of hazardous wastes, the General Assembly passed broad and sweeping legislation aimed at preventing such future deadly pollution and punishing civilly and criminally those who failed to follow its regu'latory regime which mandates that those who dispose, store, or treat hazardous waste will be responsible for such waste until it no longer poses a threat to human health or the environment.

The majority, by its narrow construction of the term "disposal" to mean only the initial act of disposal and not the continued accumulation of the toxic pollutants into the environment that is still occurring today in 20083, cripples the broad legislative mandates of Colorado's Resource Conversation and Recovery Act ("RCRA").

By misapplying Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) and the doctrine of continuing offenses, the majority unnecessarily resorts to the rule of lenity and creates ambiguity where none exists. Under a Toussie analysis, the language of RCRA and the nature of defendants' crime of knowingly spilling and leaking hazardous waste and allowing it to migrate unabated into drinking waters is such that the General Assembly intended it to be a continuing disposal violation. Thus, the public policy considerations of the statute of limitations-to encourage prompt investigation and to discourage the prosecution of stale crimes-are not present in this case where the migration of underground hazardous waste was unknowable for long periods *1202of time but now insidiously infeets human health and the environment.

Because the definition of "disposal" and the statute of limitations under RCRA apply equally to civil and criminal actions, the majority's narrow interpretation eviscerates civil and criminal enforcement of RCRA, contrary to the statute's regimen, and arguably puts the state's authorization to enforce hazardous waste standards and the federal government's financial assistance for enforcement in jeopardy because Colorado's RCRA program is no longer equivalent to the federal RCRA program. Hence, I respectfully dissent.

I would hold that because the defendants' last "acts" of disposal continue to be perpetuated today, the defendants' conduct constitutes a continuing offense under RCRA. Because the defendants' disposal offense continued through the time of indictment and trial, and for that matter, continues today, their prosecution for illegally disposing of hazardous waste without a permit is not barred by the five-year statute of limitations.

I. Background

To understand my conclusion that the current migration of toxic pollution from the defendants' site constitutes disposal under Colorado's RCRA statute, I provide a brief background of this case and the RCRA statutory scheme. In particular, I explain the general nature of underground pollution plumes, the purpose of Colorado's RCRA statute, as distinguished from CERCLA, that is designed to prevent the type of invasive and damaging harm that occurred here, and defendant Newman's knowledge that such harm could occur as a result of his actions and failure to act.

A. Underground Pollution Plumes and the Statute Designed to Prevent Them: RCRA

The jury in this case found, by proof beyond a reasonable doubt, that the defendants knowingly and illegally leaked and spilled thousands of pounds of dangerous toxic chemicals without a permit.1 Although the defendants knew that a substantial amount of the toxic chemicals seeped into the ground, at no point did they make any effort to cleanup, recover, or treat such spills. As a result, the toxins leaked through the soil and into the water table below. Subsequent testing revealed an underground pollution plume almost a mile long and hundreds of feet wide originating from the Thoro facility that contaminated a drinking water well used by a local restaurant less than a mile away from the facility. An EPA expert testified that a significant amount of the toxic chemicals spilled and leaked by the defendants currently remain in the soil underneath the Thoro site. Because there has been no clean-up or remediation of the soil, the pollution plume continues to migrate into the water table today.

Such a fact-pattern is typical of underground pollution cases. See, eg., United States v. Waste Indus. Inc., 734 F.2d 159 (4th Cir.1984); United States v. Price, 523 F.Supp. 1055 (D.N.J.1981). Like the instant case, the discovery of underground pollution plumes usually occurs in the following manner.

Local residents, as opposed to any governmental or public agencies, are typically the first to discover the pollution. Because of the underground nature of pollution plumes, local law enforcement or environmental agencies are not aware of any environmental hazard and thus have no reason to investigate. Instead, people notice a decline in the quality of their drinking water through foul color, taste, or smell or they suffer illnesses or side *1203effects such as blisters, boils, and stomach distress attributable to their use of well water. In this case, a local restaurant less than a mile from the Thoro facility complained about the quality of the water originating from its drinking water well. Subsequent testing revealed that the drinking water well was contaminated with unsafe levels of TCE, TCA, PCE and Methylene Chloride.

Onee significant and unsafe contamination levels are found, investigators follow the contamination "upstream" through the underground water flow to determine the source. Here, investigators followed the contamination from the restaurant's drinking water well through the underground water and determined that the source of the TCE, TCA, PCE and Methyl Chloride contamination was the Thoro facility.

When investigators determine the source of the contamination, groundwater hydrologists determine how the pollutants moved through the soil and how quickly they are moving once they reach the water table. Hydrologists study the distribution and characteristics of earth materials such as sand, clay, and solid rock that lis below the surface of the ground. Such characteristics can determine how the toxic chemicals move through this layer of materials below the ground surface to reach the "water table" or the flow of underground water. When the liquid toxins reach the water table, a region or plume of contamination begins. The plume follows the direction of the groundwater flow. The underground movement of the contaminated pollutants through the water table is slow but continuous.

In this case, for example, the EPA hydrologist testified that toxic chemicals in the soil at the Thoro facility-in concentration levels ten to a thousand times higher than levels considered safe for drinking water-were leaking into the water table and moving less than a foot a day through the underground water system. The pollutants emanating from Thoro took approximately twenty years to reach the drinking water well at the Arva-da restaurant. Thus, even though the last "act" of disposal at the Thoro facility occurred in 1985, the EPA hydrologists testified that pollutants spilled and leaked at that time continue to flow unabated through the water table and into drinking water wells. See, e.g., Price, 528 F.Supp. at 1061 (finding | that although the last "act" of illegal disposal occurred in 1972, the hazardous waste continued to leak into the soil from the contamination site nine years later.). Individuals who drink water from these wells expose themselves to significantly increased risks of developing toxic conditions, cancer, and birth defects. See, eg., Waste Indus. Inc., 734 F.2d at 162 (high levels of chemicals such as TCA and TCE can pose unacceptably high risks of neurological damage in children and cancer in humans of any age).

To prevent just this type of invasive harm, the General Assembly passed RCRA, see §§ 25-15-8301 to 25-15-8327, 8 C.R.S. (2002), to "ensure protection of public health and safety and the environment." 6 C.C.R. 1007-3, Part 260, Statement of Basis and Purpose.2 Colorado is authorized to enforee its own RCRA program only if it is consistent with the federal program. See 42 U.S.C. §§ 6901 to 6992k (2002)(federal RCRA program). Under the federal RCRA statutory scheme, states replace the EPA as the primary enforcement and permitting authority. See 42 U.8.C0. § 6926(b)("Such State is authorized to carry out such program in lew of the Federal program ... and to issue and enforce permits for the storage, treatment or disposal of hazardous waste ....")(emphasis added). In exchange for federal financial assistance, states enact hazardous waste laws that are equivalent to the federal RCRA program.3 Id. Colorado's RCRA program became effective on November 2, 1984. § 25-15-102(8). Any action taken by the State of Colorado pursuant to its federally authorized hazardous waste program "shall have the same force and effect as action taken by the *1204[EPA]." United States v. Power Eng'g Co., 10 F.Supp.2d 1145, 1148 (D.Colo.1998), aff'd, 191 F.3d 1224 (10th Cir.1999), cert. denied, 529 U.S. 1086, 120 S.Ct. 1718, 146 L.Ed.2d 640 (2000)(citing to 42 U.S.C. § 6926(d)). However, if the EPA determines that the state is not administering its program in accordance with the federal RCRA program, it is required to withdraw authorization from the state program. 42 U.S.C. § 6926(e).

To promote the proper management of hazardous waste, and thus reduce the need for corrective action in the future, RCRA strictly regulates any facility that "treats, stores, or disposes" of hazardous waste. § 25-15-8308. The term disposal is one of the broadest terms in the statute (as compared to "treat" and "store") and includes:

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

§ 25-15-101(8). .

Courts and commentators have determined that the nearly identical definition of "disposal" under the federal RCRA program is intended to have a range of meanings, including not only active conduct but also passive conduct such as the reposing of hazardous waste and its subsequent movement through the environment. See, eg., Waste Indus. Inc., 734 F.2d at 164-65; 1 James T. O'Reilly and Caroline B. Buenger, RCRA and Superfund: A Practical Guide with Forms § 2.5 (24 ed.2002). As the majority notes, the overwhelming number of federal courts have interpreted "disposal" in RCRA civil actions to include migration of underground wastes caused by defendants' improper disposal practices. See, eg., Power Eng'g Co., 10 F.Supp.2d at 1159 ("Because the definition of "disposal" includes the word "leaking," disposal occurs not only when .-.. hazardous waste is first deposited onto ground or into water, but also when such wastes migrate from their initial disposal location.").

RCRA's disposal requirements are considered "cradle to grave," because the hazardous waste management system regulates hazardous waste in perpetuity-from the point it is generated until it will no longer endanger human health or the environment.4 Thus, all owners and operators of disposal facilities must comply with reporting, monitoring, and inspection requirements, follow only approved treatment, storage and disposal methods, and fulfill all permit requirements until the waste no longer poses a threat to human health or the environment. See 6 C.C.R. 1007-3, Part 100.

Consistent with RCRA's mandate of protecting human health and the environment, land disposal of hazardous waste is prohibited unless it can be shown that there will be no migration of such waste:

[A] method of land disposal may not be, determined to be protective of human health and the environment for a hazardous waste ... unless ... it has been demonstrated ... to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit ... for as long as the wastes remain hazardous.

42 U.S.C. § 6924(d)(1)(emphasis added).5

To prevent the migration of hazardous waste and thus to protect human health and the environment, RCRA imposes substantial civil and criminal penalties on those owners and operators who illegally dispose of hazardous waste without a permit. Although the state acts in lieu of the federal government to enforce RCRA and impose such *1205penalties, private citizens may still bring "citizen suits" pursuant to the federal RCRA program to enforce the state's hazardous waste standards. See Sterro Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993). The broad definition of disposal applies equally to civil and criminal RCRA actions.

Civilly, the Colorado Department of Public Health and the Environment acts in lieu of the EPA pursuant to federal legislation to enforce RCRA. It may impose penalties on owners or operators of hazardous waste facilities that flegally dispose of such waste with- ~ out a permit. The Department can impose administrative fines of up to fifteen thousand dollars per day per violation. § 25-15-809(1). Or, in lieu of administrative penalties, the Department may seek a civil penalty of twenty-five thousand dollars per day per violation. Id. Persons subject to administrative or civil penalties under RCRA can mitigate those penalties if they had previously established a self-regularized and comprehensive environmental compliance program, and, as a result of such a program, voluntarily disclosed the existence of potential environmental hazards prior to the Department's knowledge and worked with the Department in good faith to remediate the hazards. See § 25-15 (Lh). The purpose of such "mitigating factors" is so that owners and operators who treat, store, or dispose of hazardous waste will voluntarily discover, properly disclose and expeditiously correct violations before they endanger human health and the environment. Irrespective of whether an administrative or civil order is entered, the Department is not precluded from referring the same disposal violation for criminal pros-_ ecution, $ 25-15-809(2).

The State Attorney General enforces the criminal provisions. It is a felony to knowingly dispose of any hazardous waste without a permit. § 25-15-810(1)(b),(8). A court may sentence anyone found guilty of knowingly disposing of hazardous waste without a permit to pay a fine of not more than fifty thousand dollars for each day of violation, or by imprisonment not to exceed four years, or | by both such fine and imprisonment.6 § 25-15-310(8). © Similar to civil actions, RCRA criminal violators can mitigate the severity of criminal penalties if they had & self-regulating environmental compliance program that allowed them to disclose voluntarily and remediate environmental hazards before posing a threat to human health and the environment. § 25-15-809(5)(F),(g), (b).

Both civil and eriminal actions brought under RCRA are subject to the same statute of limitations. Any action under Colorado's RCRA requirements must commence within two years after the date upon which the Department discovers an alleged violation or within five years after the date upon which the alleged violation occurred, whichever date occurs earlier.7 § 25-15-308(4)(a). If the state discovers a disposal violation that would be barred by the statute of limitations-tie., the site stopped "leaking" more than five years earlier-the state cannot impose any administrative, civil or criminal penalties for such a disposal violation but can order the violator to remediate the area and any consequéneces of such a hazardous waste leak if it does so within two years of discovery. § 25-15-808(4)(b).

RCRA, in both its purposes and enforcement regimen, is distinguishable from the Comprehensive Environmental Response *1206Compensation and Liability Act.8 §§ 25-16-101 to 25-16-810; 42 U.S.C. §§ 9601 to 9675. CERCLA has. two broad remedial purposes: to facilitate the clean-up of hazardous waste sites and to ensure that those responsible for pollution pay the costs of clean-up. The first goal is accomplished by the establishment of the federal government's "Superfund" to pay for clean-up. To accomplish the second goal of making those responsible for pollution to pay the costs, CERCLA imposes strict liability on any persons who owned or operated property at the time of disposal of hazardous waste. 42 U.S.C. § 9607(a@)@). Unlike RCRA, CERCLA is a retroactive statute. CERCLA imposes strict liability and potentially responsible parties must pay for the clean-up but can sue for contribution from others. Unlike RCRA, CERCLA includes a defense for the "innocent landowner." This defense can be asserted if, at the time of purchase, the defendant did not know, and no reason to know, that hazardous waste was disposed of on the property. 42 U.S.C. § 9601(35)(A)@M. Unlike RCRA, CERCLA includes only civil enforcement. 42 U.S.C. § 9609.

B. Defendant Newman's Enowledge of RCRA and Its Requirements

A jury found, beyond a reasonable doubt, that the defendants violated the eriminal provisions of RCRA by knowingly disposing of hazardous waste without a permit. The ree-ord supports their conclusion that Defendant Newman was aware and knew about the consequences of spilling and leaking hazardous waste and the danger to human health and the environment by allowing them to migrate underground. Based on his work experiences, education, and training, Defendant Newman knew the technical process of proper disposal procedures and the strict requirements that RCRA imposed on those who disposed of hazardous waste so as to prevent the type of insidious migration that occurred here.

Defendant Newman was an integral part of Thoro's business during the time in which it continuously leaked and spilled tons of TCE, TCA, PCE and Methyl Chloride onto the ground. In the early seventies, during college, Newman worked summers at Thoro. After graduating from college in 1974, Newman started full-time at Thoro. He started as a "terminal operator," which involved learning the business of handling the toxic chemicals. Specifically, Newman was responsible for pumping the chemicals from the railcar to the storage tank and then pumping them from the storage tank to the trucks. As a terminal operator, Newman received specific instructions from Dow about how to handle the toxic and dangerous chemicals. In its written handling instructions, Dow cautioned Thoro about "spill, leak and disposal procedures." The procedures indicted that for small spills, Thoro should mop up, wipe up, or soak up the liquid immediately. For large spills, Dow instructed Thoro employees to contain the liquid, transfer it to a closed metal container, and to keep the contamination out of the water supply.

By 1978, Newman continued his role of terminal operator but also trained and assisted other employees as terminal operators. By late 1988, Newman was Vice-President of Thoro. According to a job description for Newman related to another Thoro site that had its RCRA permit, Newman's responsibilities were: (1) attending all school sessions, all classes, knowing all RCRA regulations and changes thereto;9 (2) monitoring the site location and checking field conditions and reports; (8) physically inspecting the site with inspectors and agencies; (4) checking mechanics of operation, maintenance, and *1207conditioning as well as interfaces with chemical operators; and (5) insuring proper safety equipment and protection gear procurement, operation, and maintenance. Consistent with its continuing education policies, Thoro reported that Newman received over fifty hours of RCRA training: sixteen hours of D.O.T. Training on Hazardous, Materials Regulations; eight hours at a RCRA Regulatory Seminar; sixteen hours for Regulations for Terminal Operators; eight hours for an Environmental Hazards Seminar; and seven hours for a Seminar on Preparation of RCRA Applications.

As Thoro's Vice-President, Newman wrote to the Colorado Department of Health after the effective date of Colorado's RCRA program asking the Department to send Thoro the recently published regulations concerning hazardous wastes. Records found at Thoro's Arvada site included correspondence from the EPA and the Colorado: Department of Health regarding RCRA regulatory and permitting requirements and an "Overview of the Resource Conservation and Recovery Act." The Overview cautioned that any individuals or companies who disposed of hazardous waste without a permit in violation of RCRA may be subject to significant civil and criminal penalties that are assessed per day of violation.

Given Newman's background, experiences, and training, the jury verdict established that he knew that his failure to remediate or clean-up the spilled and leaked waste could result in criminal penalties. For over a decade after the passage of RCRA, Newman knew about the hazardous and dangerous nature of the toxic chemicals that he spilled and leaked into the ground. As the responsible and knowledgeable officer, he took no action to remediate the polluted soil or prevent dangerous toxins from migrating into underground water and reaching nearby drinking water wells.

II. The Doctrine of Continuing Offenses in the Context of RCRA

Having explained the background of this case and the RCRA statutory scheme that is designed to prevent the type of underground pollution plume that occurred here, I turn to the question of whether RCRA's definition of "disposal" includes the migration of hazardous waste that is occurring today. I conclude that it does.

The question turns on whether the defendants are guilty of a continuing offense. Such an offense is not complete upon the first act, but instead continues to be perpetuated over time. See United States v. De La Mata, 266 F.3d 1275, 1288 (11th Cir.2001); 21 Am.Jur.2d Criminal . Law § 513 (2002)("[A] continuing offense is a continuous, unlawful act or series of acts set in motion by a single impulse...."). If the migration of underground pollutants constitutes a "disposal offense" that continues today, then the statute of limitations will not run because the illegal conduct continues. See § 16-5-401(4).

As applied in this case, the question becomes: even though the defendants' last "act" occurred in 1985, did they initiate a course of conduct that continues to be perpetuated today? If so, they may be prosecuted civilly and criminally because their offenses are occurring, today and thus RCRA's five-year statute of limitations does not operate to bar their prosecutions. To determine whether RCRA recognizes just such a continuing "disposal" offense, I turn to the Supreme Court's continuing offense analysis in Toussie and the cases that have applied Tousste in the context of RCRA.

In Toussie, the Supreme Court held that the defendant's conviction for failing to register for the draft was barred by the applicable statute of limitations. 397 U.S. at 124, 90 S.Ct. 858. Although the government did not indict the defendant until eight years after his eighteenth birthday, it argued that the Universal Military Training and Service Act ("Draft Act") imposed a continuing duty to register until age twenty-six and thus the indictment was timely. The Supreme Court rejected the government's argument. The Court stressed the public policy reasons behind statutes of limitation: to protect individuals against prosecution after the facts have faded away; to minimize the danger of punishment for acts in the distant past; and to encourage government officials to investigate promptly suspected illegal activity. Id. at *1208114-15, 90 S.Ct. 858. Although the Court concluded that eriminal statutes of limitation should be construed liberally in favor of repose, it recognized that continuing offenses exist in certain cireumstances.

The Court held that in the context of erim-inal statutes of limitation, there are two instances in which a court can find that a crime qualifies as a continuing offense: (1) when the explicit language of the substantive criminal statute compels such a conclusion; or (2) when the nature of the erime involved is such that Congress must have assuredly intended that it be treated as a continuing one. Id. at 115, 90 S.Ct. 858. Applying its two-pronged test to the Draft Act, the Court concluded that there was "no language in this Act that clearly contemplates a prolonged course of conduct." Id. at 120, 90 S.Ct. 858. For the second prong, the Court reasoned that there is "nothing inherent in the act of registration itself which makes failure to do so a continuing crime." Id. at 122, 90 S.Ct. 858;

Consistent with the guidance set forth by the Court in Toussie numerous federal courts have held that the nature of various offenses is continuous, despite the absence of explicit statutory language that the offenses are "continuing." United States v. Bailey, 444 U.S. 394, 418, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980)(escaping from federal custody); United States v. Blizzard, 27 F.3d 100, 102 (4th Cir.1994)(receiving and concealing stolen government property); United States v. Garcia, 854 F.2d 340, 348 (9th Cir.1988); (kidnapping); United States v. Aliperti 867 F.Supp. 142, 147 (E.D.N.Y.1994)(multi-year extortion); United States v. Field, 482 F.Supp. 55, 59 (S.D.N.Y.1977)(eriminal RICO violation).

The continuing offense analysis in Towussie is particularly well-suited for environmental RCRA cases. In such cases, the harm is "inherently unknowable" for long periods of time. Inherently unknowable harms occur when it is unlikely that anyone will discover them before the limitations period expires. See Albert C. Lin, Application of the Continuing Violations Doctrine to Environmental Law, 28 Eeol. LQ. 728, T57-58 (1996).10 Common examples include underground storage tanks that slowly but continually leak hazardous waste into the soil or the continual spread of hazardous waste through underground water systems. Id. Such harms are often subtle, gradual events and detection of them requires extensive and complicated sampling. See James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 692 (1996). RCRA violations, that involve the disposal of hazardous waste through underground soil and water, are particularly susceptible to being unknowable harms:

[MJajor violations of the Clean Air Act and the Clean Water Act can often be readily detected by the EPA, state environmental agencies, and/or citizen groups because of the mandatory monitoring requirements and because unpermitted releases into the air and water can usually be traced back to the violator. By contrast, violations of RCRA may not be immediately discovered because disposal sites may be operated for many years without noticeable contamination.

Lin, 23 Ecol. LQ. at 757 (internal citations omitted).

Given the unique nature of RCRA cases, courts have held that the continuing offense doctrine applies to prosecutions of environmental crimes. See, eg., United States v. White, 766 F.Supp. 878, 886-87 (E.D.Wash.1991); State v. Brothers, No. 2001-Ohio-8725, 2001 WL 1602692, at *3 (Ohio App. Dec. 14, 2001)(holding that under Ohio's RCRA statute, barrels leaking hazardous waste into the soil constituted continuing disposal and thus the applicable limitations period had not begun to run).

Indeed, environmental defendants have unsuccessfully relied on the Toussie analysis in attempts to escape responsibility for fllegally storing or disposing of hazardous waste under RCRA. See White, 766 F.Supp. at 886-87; In the matter of Harmon Elees., Inc., *1209No. 1994 WL 730509, 1994 EPA ALJ LEXIS 835 overruled on other grounds, 19 F.Supp.2d 988, 998 (W.D.Mo.1998). The Harmon case is persuasive because its author is an administrative law judge who specializes in environmental cases. He analyzed RCRA under the Toussie framework and concluded that disposing of hazardous waste without a permit is a continuing violation.

Although this RCRA case was a civil and not a criminal prosecution, the judge distinguished Toussie First, the violation in Toussie stemmed from the single act of failing to register or provide notification as required by the statute. On the- other hand, the RCRA disposal violations resulted from the ongoing operation of a hazardous waste landfill without a permit. The RCRA offense was "not simply an act of failing to file for a permit but a state of continued noncompliance with RCRA by treating, storing, and disposing of hazardous waste without a permit." Id. at *32, The ALJ cautioned that when hazardous waste is improperly disposed and remains on the property, it "insidiously affect[s] the soil and groundwater aquifers." Id. at *88 (citations omitted). As a result, the violation continues until the appropriate clean-up measures are erected or remediation occurs. Id. Consistent with such an interpretation, the statute explicitly provides for per day penalties. Id. at *40-41; see also 42 U.S.C. § 6928(g)("Any person who violates any requirement of this sub-chapter shall be liable to the United States for a civil penalty in an amount not to exeeed $25,000 for each such violation. Hack day of such violation shall, for purposes of this subsection, constitute a separate violation.")(emphasis added). The ALJ explained that for there to be a daily penalty, there must be a corresponding daily or continuing violation. 1994 WL 780509, 1994 EPA ALJ LEXIS 35, at *41.

Second, the ALJ reviewed the legislative history of RCRA and concluded that Congress intended that unregulated hazardous waste management should be prevented because the consequences of unremediated disposal continue until and unless remediated. Id. at *85. Unregulated hazardous waste disposal practices continue indefinitely and can contaminate drinking water or the food chain and injure the environment. Id. (citing H.R.Rep. No. 1491, 94th Cong., 2nd Sess. 3-4, 11, reprinted in 1976 U.S.Code Cong. & Admin. News 6238, 6241, 6249). As a result, Congress mandated the issuances of permits so that such waste will be disposed only in sites designated specifically for that purpose. Id.

Concerning the statute of limitations, the ALJ reasoned that it played an important role in the determination of penalties, even when a RCRA violation is continuing. Id. at *42-48. He held that the five-year statute of limitations allowed the assessment of penalties only for the five-year period prior to the filing of the RCRA complaint. Id. The ALJ concluded that under the Towssie analysis, RCRA recognizes a continuing "disposal" violation that is not barred by the statute of limitations.

On appeal, the Environmental Appeals Board ("EAB") affirmed the ALJ and held that consistent with the Toussie analysis, RCRA's language imposes "continuing obligations" on those disposing of hazardous waste because of the serious consequences of improper handling procedures. In re Harmon Elees. Inc., No. RCRA-VII~91-H-0087, 1997 WL 133778, 1997 EPA App. LEXIS 6, at *66 (Envtl. Appeals Bd. March 24, 1997). The EAB concluded that those persons who violate RCRA's permit requirements should not escape the Act's severe, daily sanctions merely because they have continued to violate the law for a considerable amount of time.. Id. at *67. The application of Tousste in the context of RCRA was affirmed by the United States District Court. See Harmon, 19 F.Supp.2d at 998, aff'd, 191 F.3d 894, 904 (8th Cir.1999).

III. The Migration of Hazardous Waste Constitutes The Continuing Offense of Disposal under Colorado's RCRA Statute

Baged on the framework set forth in Tous-sie and cases such as Harmon that apply Tousste in the environmental RCRA context, I would hold that RCRA recognizes the continuing offense of disposal to include continuing migration of hazardous waste. The ex*1210plicit language of Colorado's RCRA statute compels such a conclusion and the nature of the erime involved is such that the General Assembly, following the guidance of Congress and the broad enforcement provisions of the RCRA statutory scheme, intended that it be treated as a continuing one. Toussie, 397 U.S. at 115, 90 S.Ct. 858. Accordingly, even though the defendants' last "act" occurred in 1985, I would hold that they initiated a course of conduct that continues to be perpetuated today and may be punished today.

Thus, I diverge from the majority which holds that a broad and explicit enforcement scheme designed to deter environmental polluters is nonetheless "ambiguous" and rules in favor of the eriminal defendants pursuant to the rule of lenity. There is no prohibition against giving statutory words their full meaning in the context in which they are used. People v. Dist. Court, 718 P.2d 918, 922 (Colo.1986). The rule of lenity should be used only to resolve statutory ambiguity, and not to create it by disregarding the clear legislative purpose for which the statute was enacted. People v. Forgey, 770 P.2d 781, 783 (Colo.1989). A public welfare statute such as Colorado's RCRA statute is designed to protect human health and the environment and should not be construed narrowly. See United States v. Laughlin, 768 F.Supp. 957, 965 (N.D.N.Y.1991).

A. The Explicit Language of Colorado's RCRA Statute Provides for Continuing Disposal Offenses

Contrary to the majority's assertions, there is no requirement under Toussie that Colorado's RCRA statute must contain the word "continuing" in order to find that the statute contemplates the punishment of continuing offenses. Instead, Towsste's first prong requires examining whether the language in Colorado's RCRA statute contemplates a prolonged course of conduct such as continuing disposal. 897 U.S. at 120, 90 S.Ct. 858. Unlike the Draft Act in Toussie such language is found in the broad definition of disposal and the provision for daily penalties.

RCRA defines "disposal" using a wide variety of terms so as to punish and to deter various types of practices: discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water. § 25-15-101(8). The definition does not include the terms "passive migration" or even "migrating." However, the term "leaking" reasonably includes migration, either "passive" or "active." A person can actively allow a rusted barrel or storage container to leak. Or, hazardous waste, through no overt action, can "leak through a particular area" such as soil. See Webster's Third New International Dictionary 1285, 2195 (1986). Consistent with the interpretation of federal courts in civil RCRA actions, such language does not imply ambiguity.11 On the contrary, the diversity of meanings of "leaking" and the diversity of terms in general makes it unnecessary to choose between an active or passive interpretation of the term "disposal" because it includes both.12 Thus, because RCRA's definition of disposal includes not only active *1211conduct but passive conduct such as the reposing of hazardous waste and its subsequent movement through the environment that is occurring today, RCRA's language contemplates continuing disposal offenses.

Consistent with a continuing offense, RCRA imposes daily criminal penalties. Criminal defendants convieted of knowingly disposing of hazardous waste without a permit "shall be punished by a fine of not more than fifty thousand dollars for each day of violation." § 25-15-810(8); see also § 25-15-310(2)("any person acting with criminal negligence ... shall be punished by a fine of not more than twenty-five thousand dollars for each day of violation.")(emphasis added). Unquestionably, RCRA contemplates that for at least some offenses, they are not one-day events. For there to be a daily penalty, there must be a corresponding daily or continuing offense. 1994 WL 730509, 1994 EPA ALJ LEXIS 35, at *41. Thus, unlike the Draft Act in question in Toussie there is explicit language in Colorado's RCRA statute that clearly contemplates a prolonged course of conduct.

B. The Nature of the Crime of Disposal is Such that the General Assembly Intended It to Include Continuing Migration of Hazardous Waste

Even if I am wrong that RCRA does not satisfy Tousste's first prong because there is no explicit language that disposal is a "continuing offense or violation," it fully satisfies the second prong. ~

The disposal offense in this case is not simply an act of failing to file for a permit. Rather, the defendants set upon a course of continued noncompliance with RCRA by failing to properly dispose of toxic and dangerous chemicals. Once the defendants leaked and spilled tons of deadly pollutants into the ground, they had a continuing obligation under RCRA to see that the contamination was properly treated, remediated or cleaned up in a manner that no longer posed a threat to human health and the environment. Harmon Elecs., Inc., 1997 WL 188778, 1997 EPA App. LEXIS 6, at *66. The defendants should not escape liability merely because they have failed to handle properly these chemicals for a considerable period of time and told no one of their acts for years. Id. at *67.

The prevention of hazardous waste migrating through the environment so as to protect human health is at the core of RCRA's disposal procedures. The "cradle to grave" regime means that owners and operators of facilities that dispose of hazardous waste are responsible for such waste until it is no longer hazardous. RCRA recognizes that when hazardous waste is allowed to migrate dangerously through the environment, those responsible for such migration will be held accountable for their continuing inaction until it stops. The nature of the defendants' actions and inactions-spilling and leaking tons of hazardous waste so that it would continually migrate through the water table unabated-is such that the General Assembly intended that they would be considered a continuing offense.

My construction of the word "disposal" to include migration-based on the explicit language of RCRA and the nature of the erime-does not nullify the public policy reasons behind the five-year statute of limitations nor does it nullify the statute itself. Under Toussie, the primary purposes of the statute of limitations in the eriminal context were to protect individuals against facts that have faded away, to minimize the danger of punishment for acts in the distant past and to encourage governmental officials to investigate promptly suspected illegal activity. 897 U.S. at 114-15, 90 S.Ct. 858. Such considerations are lessened in the context of continuing and current underground hazardous waste migration. Indeed, government officials will rarely be in a position to investigate or even be aware of an underground pollution plume. In addition, as interpreted by the state in this case, the statute of limitations plays an important role in limiting the time period for which penalties may be assessed. See, eg., United States v. WCI Steel, Inc, 72 F.Supp.2d 810, 881 (N.D.Ohio 1999)(holding that under RCRA, the five-year statute of limitation limited the assess*1212ment of penalties to five years prior to the filing of the action). As applied in this case and as argued by the state, the state may only seek criminal penalties against the defendants for the five-year time period prior to the filing of the indictment.

Section 25-15-8308(4)(b), which prohibits state actions commenced outside the statute of limitations period but allows state remedial orders, does not apply here because the defendants' continuing disposal violation-the continuing leaking of hazardous waste into the water table below-eontinued at the time of indictment. This action was commenced within the applicable statute of limitations time period because the defendants' perpetuated a continuing, illegal course of conduct that was present at the time of indictment and is present today,

For example, if the defendants had taken action in 1990 to stop the leaking of hazardous waste from the Thoro facility, then the statute of limitations would have begun to run at that time. Thus, after 1995, the state could not have imposed any penalties-administrative, civil or criminal-on the defendants' disposal violation because their illegal conduct of "leaking hazardous waste" had ceased more than five years earlier. However, under the provisions of section 25-15-308(4)(b), the state could order the defendants, within two years of discovery, to cleanup fully and to remediate the area and any underground water systems affected by their illegal disposal of hazardous waste. § 25-15-808(4)(b).

My interpretation is also consistent with the vast majority of courts that have held that the term "disposal" in civil RCRA actions includes not only when hazardous waste is first deposited into the ground but also when such wastes migrate from their initial disposal location. See Power Eng'g Co., 10 F.Supp.2d at 1159. Given that the definition of "disposal" and the statute of limitations apply equally to civil and criminal actions, I avoid the serious implication of the majority's opinion that civil RCRA actions will now be limited to instances of only "active disposal." Improper disposal practices that result in "passive migration" will no longer be punishable by the Act either civilly or eriminally. Persons responsible for such violations will be less likely to initiate self-regulating compliance programs that will enable them to discover voluntarily, disclose properly, and correct expeditiously any violations before the contamination caused by leaking hazardous waste endangers human health and the environment-contrary to the explicit goals of the Act. Indeed, the majority's narrow interpretation of disposal may also limit the ability of private citizens to enforce the state's hazardous waste program in civil "citizen suits" brought in federal court because of the new ambiguity between the majority's interpretation of "disposal" under state law as compared to the interpretation of the term under federal law. See Sierra Club v. Chemical Handling Corp., No. 91-C-1074, 1993 WL 540877, at "1 (D.Colo.1998)(relying on Colorado's RCRA statutory provisions in private citizen suit).

Because such a narrow interpretation contravenes the broad purposes and enforcement scheme of RCRA and the federal courts that have analyzed the term "disposal" in the civil context, arguably a grave risk exists that the federal government could revoke Colorado's federal financial assistance and RCRA's enforcement authorization because our program is no longer equivalent to and consistent with the federal RCRA program.

Overall, because RCRA's definition of disposal includes migration of hazardous waste, the state can effectively punish environmental defendants who illegally dispose of hazardous waste without a permit and allow it to enter the soil and underground water system. Otherwise, given the nature of most RCRA actions that involve inherently unknowable harms, polluters who illegally dispose of hazardous waste without a permit will likely escape criminal and civil prosecution because the contamination will go undiscovered until well after the statutory limitations period. See Lin, 23 Ecol. L.Q. at 757. The state would be limited to prosecuting only those polluters whom they discovered with containers or storage areas that were "actively leaking." See, eg., Brothers, 2001 WL 1602692 at *2. It would seem absurd to prosecute criminally or civilly only those who *1213had the foresight to contain dangerous hazardous waste that subsequently leaked and not to prosecute polluters who leaked hazardous waste onto the ground without any attempt to clean it up, recover it, treat it or inform authorities of the problem. Such a result is contrary to the language and clear public welfare policies behind the RCRA statutory scheme.

IV. Conclusion

For the reasons stated above, I would overrule the judgment of the court of appeals and reinstate the defendants' felony convie-tions for knowingly disposing of hazardous waste without a permit.

I am authorized to say that Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.

. For example, defendant Newman testified that railcars full of toxic chemicals sat on the rail spur at Thoro and leaked onto the ground. One such leaking railcar lost approximately half of its cargo of Methylene Chloride-approximately six thousand pounds. Newman and other Thoro employees also testified that a faulty pump used to transfer TCA to and from the storage tank leaked continuously for months. One employee stated that the pump leaked thousands of pounds of TCA. Even taking into account possible losses due to evaporation and residual chemicals left in railcars, there were substantial, unexplained losses. For instance, one set of Thoro reports showed that in 1979 Thoro lost six tons of TCA.

. See also 42 U.S.C. § 6902(a)(4)(2002)(primary purpose of federal RCRA program was to assure that "hazardous waste management practices are conducted in a manner which protects human health and the environment.").

. See 6 C.C.R. 1007-3, Part 260 ("Such full state authorization to conduct the hazardous waste regulatory program can be granted only upon the determination that the State program is equivalent to that of the EPA.")(emphasis added).

. See Timothy E. Shanley, Applying a Strict Limitations Period to RCRA Enforcement: A Toxic Concept with Hazardous Results, 10 Pace Envtl. L.Rev. 275, 278 (1992).

. See also Hazardous Waste Treatment Council v. United States EPA, 910 F.2d 974, 975 (U.S. 1990)(h01d1ng that land disposal may be found ' protectlve of human health and the environment" under RCRA only if the EPA concludes that there will be "no migration of hazardous constituents from the disposal unit ... for as long as the wastes remain hazardous."); O'Reilly, RCRA and Superfund: A Practical Guide with Forms § 4:8 ('The few land disposal sites allowed to take untreated wastes will need to show that there will be no migration from the site of hazardous constituents, for as long as the wastes remain hazardous.").

. It is also a federal offense to knowingly dispose of any hazardous waste without a permit. 42 U.S.C. § 6928(d)(2)(A). A court may sentence such criminals to fines of fifty thousand dollars for each day of violation or imprisonment for up to five years. 42 U.S.C. § 6928(d).

. The federal RCRA program does not have a statute of limitations for either civil or criminal actions. See, eg., Meghrig v. K.F.C. Western, Inc., 516 U.S. 479, 486, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). However, many courts have applied general statute of limitation provisions to federal actions in both the civil context, see 28 U.S.C. § 2462 (five-year statute of limitation for civil actions); Glazer v. American Ecology Envil. Servs., 894 F.Supp. 1029, 1044 (E.D.Tex.1995), and the criminal context. See 18 U.S.C. § 3282 (five-year statute of limitation period for criminal proceedings); United States v. White, 766 F.Supp. 873, 886 (E.D.Wash.1991); see generally, Doris K. Nagel, RCRA Enforcement and the Statute of Limitations, 18 Envtl. L. Rep. 10431 (1988)(discussing both civil and criminal statute of limitations under RCRA).

. The state is authorized to enforce the federal CERCLA program. See §§ 25-16-101, 25-16-103.

. Thoro's "Continuing Education Policy" stated:

Like most regulations management anticipates that the Resource. Conservation and Recovery Act (RCRA) will undergo many changes as conditions warrant them, and it will continue to be management's aim to maintain a high concern and a high degree of compliance with the changing scene.
In order to do this it is necessary that our operations! [sic] personnel be educated and kept abreast of the state of the art. While we make all changes and other updated information available to each and every operations employee, we feel that it [sic] necessary that all of our people go off site to a seminar or a school as often as is possible and educational.

. See also Shanley, 10 Pace Envtl. L. Rev. at 276 (''The discovery of improperly stored or disposed of hazardous waste is hampered by the fact that it may take years before such wastes begin to leach into groundwater or aquifers, or present some other identifiable environmental harm.").

. The majority also argues that the term "disposal" is ambiguous because courts have concluded that under CERCLA, which utilizes the identical definition, the term does not include passive migration. See, eg., Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 879 (holding that migration of contamination through soil is not "disposal" in CERLCA action). CERCLA is not instructive to our analysis of this RCRA case. CERCLA is a vastly different statute that imposes strict civil liability and is designed to clean up or remediate past contamination. RCRA, on the other hand, is prospective only and includes civil and criminal penalties. Under CERCLA, disposal is construed not to include passive migration in large part because it ' would eliminate the "innocent landowner defense" for those parties who purchased property but did not know or have reason to know at the time that hazardous wastes had been disposed on the property. See, eg., Carson Harbor, 270 F.3d at 882 ("Were we to adopt an interpretation of "disposal" that encompassed all subsoil passive migration, the innocent landowner defense would be essentially eliminated."). The innocent landowner defense is not available in RCRA actions.

. Waste Indus. ne., 734 F.2d at 164-65; O'Reilly, RCRA and Superfund: A Practical Guide with Forms § 2.5 (explaining that the definition of disposal, consistent with the purposes of RCRA, is intended to have a range of meanings, including not only active conduct but passive conduct such as the reposing of hazardous waste and its subsequent movement through the envi*1211ronment); Power Eng'g Co., 10 F.Supp.2d at 1159.