People of the State of Colorado v. Thoro Products Co., Inc. And Richard Ernest Newman, Jr. Jefferson...
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Transcript of People of the State of Colorado v. Thoro Products Co., Inc. And Richard Ernest Newman, Jr. Jefferson...
People of the State of Colorado
v.
Thoro Products Co., Inc.
And
Richard Ernest Newman, Jr.
Jefferson County District Court
Case No. 97CR1915 & 97CR1916
PROSECUTED BYDennis Hall,
Deputy District Attorney
Jefferson County District Attorney’s Office
Eric Nelson,
EPA Attorney
Office of Criminal Enforcement, Forensics, and Training
June 1996
Contacted by Tim Gablehouse of the Law Firm of Gablehouse & Epel
Represents Mathews/Vintage Sales/Mark VII;
Business next door at 5889 Lamar Street in lawsuit against Thoro et al
Concerns from sworn statements of former Thoro employees
regarding possible criminal acts by Thoro and Thoro management
relating to contamination
May 1995
Conducted site investigation concerning old Sheridan landfill: Sheridan Dump Site at I-76 and Sheridan Blvd.
Inspection included testing of drinking well known to be upgradient from the Sheridan Dump Site that served one residence located at 5607 North Sheridan Blvd., and the Twins Inn Bar located at 5201 W. 56th Avenue.
May 17, 1995
SAMPLING RESULTS
Drinking Water Heavily Contaminated
TCE (450 ppb) (MCL 5 ppb) 90 times the MCL
PCE (120 ppb) (MCL 5ppb) 24 times the MCL
Also 1,1,1-TCA found above MCL
Emergency Response Needed Due To:
• Contaminated drinking well dangerous to life
and health
• EPA immediately supplied bottled water to
Twins Inn and residences
INVESTIGATION INTO SOURCE OF CONTAMINATION
Geoprobe - Core Sampler of Soils and Groundwater
Solvent Plume tracked NW, upgradient from drinking well
Concentrations higher to NW until Plume reaches Thoro
Thoro Products Co., Inc.
6611 W. 58th Place
Arvada, Colorado
• Land Purchased in 1958
• Built in 1960
Purchased Rocky Flats facility, June 1982
Located At:
17300 State Hwy 72 (9091 Umber Court)
(Rocky Flats Industrial Park)
• Company Began Operating in 1902
• Incorporated in 1947: Thoro Products, Inc.
• Richard Edwin Newman, Sr., President 1947 to 1989
•Richard Ernest Newman, Jr., Vice-President from 1983 ; President from 1989 until Corporate Dissolution in 1997; Presently Owner of Unincorporated Company
•
Products/Solvent Recycling/Dow Storage
• 1946 Household Cleaning Production
(Bleach, Ammonia, Glass Cleaner, “Thoro Spot Remover”)
TSD Permit
• November 1985 (2) year storage permit for recycling operation @ Rocky Flats Facility
• Prior to November 1987, Thoro Request for Extension
• April 1990 Notice of Intent to Deny Extension
(effective 30 days after receipt by Thoro)
• Facility still undergoing closure as required by permit
Dow Distribution Terminal Contract
• Final Cancellation July 1990
• Contract expanded over the years to other products,
including Chlorinated Solvents and Soil Fumigant• Dow retained ownership/title of product
• Dow assisted in design of construction of above ground
storage tanks, however, Thoro owned tanks
• Original Service Agreement July 1964 (effective August 1 1964)
• Dow discontinued delivery of chlorinated solvents in 1985
Dow Chemicals
1. Dow Trademark Name . . . . . . . . . . . . .Dowper
Chemical Name(s) . . . . . . . . . . . . . . . . Tetrachloroethene or Perchloroethene
or Perchloreothylene
Abbreviation . . . . . . . . . . . . . . . . . . . . . . .PCE
2. Dow Trademark Name . . . . . . . . . . . . Neu-Tri
Chemical Name . . . . . . . . . . . . . . . . . . . Trichloroethene or Trichloroethylene
Abbreviation . . . . . . . . . . . . . . . . . . . . . . .TCE
3. Dow Trademark Name . . . . . . . . . . . . Chloroethene NU
Chemical Name. . . . . . . . . . . . . . . . . . . . 1,1,1-Trichloroethane
Abbreviation. . . . . . . . . . . . . . . . . . . . . . . 1,1,1-TCA
4. Chemical Name. . . . . . . . . . . . . . . . . . . Methylene Chloride (No Dow Trademark Indicated)
5. Dow Trademark Name. . . . . . . . . . . . Telone II Soil Fumigant
Chemical Name. . . . . . . . . . . . . . . . . . . .1,3-Dichloropropene
Review of Thoro’s Regulatory History
EPA, CDPHE, Jeffco Dept. of Health
No Permit for Haz Waste Management at Arvada
Compliance incident involving chlorinated
solvents in 1994 (Thoro denies it handles
chlorinated solvents at this time)
• Approximately 60 boxes of documents seized.
• Samples of soil, 55 gallon drums.
• Dye tests of sewer lines and other underground pipes and
drains by Metro Wastewater showed other evidence of
illegal disposal.
Richard Ernest Newman, Jr.
(1) count of Illegal Disposal
(1) count of Illegal Storage
(1) count of Criminal Mischief
Thoro Products Co., Inc.
(1) count of Illegal Disposal
(1) count of Illegal Storage
(1) count of Criminal Mischief
Jefferson County Grand JuryReturned Indictments For:
A two week trial was held
before the Honorable Judge Plaut at the
Jefferson County District
Court, Division 5-C
The Criminal Mischief Theory
• The solvent plume is continuing to migrate from Thoro’s property to the property of neighboring landowners ;
• It was within defendant’s power to stop the migration of solvents by cleaning up the contaminated soil;
• CONDUCT “means an act or omission and its accompanying sate of mind, or, where relevant, a series of acts or omissions.”
The Defense Theory
• The Defendant argued that leaks and spills occurred before the statute was enacted in November of 1984.
Thoro Products Co., Inc. found guiltyfound guilty of:
(1) count of Illegal Disposal of Hazardous Waste
(1) count of Illegal Storage of Hazardous Waste
(1) count of Criminal Mischief
Richard Ernest Newman, Jr. found guiltyfound guilty of:
(1) count of Illegal Disposal of Hazardous Waste
(1) count of Illegal Storage of Hazardous Waste
The Corporation was sentenced to:
Count 1: Criminal Mischief, $750,000 fine
Count 2: Illegal Storage Of Hazardous Waste,
$100,000 fine
Count 3: Illegal Disposal of Hazardous Waste,
$100,000 fine
Ten Years Probation
Thoro Products Co. Inc.
When the Court finds extraordinary aggravating
factors, it has the option of increasing the
possible penalty to double the presumptive
maximum.
The court found that the Defendant acted in a knowing and reckless manner, thereby sentencing the Defendant in the aggravated range.
COUNT (2): Sentenced to Department of Corrections for a period of (8) years.
COUNT (3): Sentenced to Department of Corrections for a period of (6) years, consecutive to Count (2).
The Court retains jurisdiction regarding restitution.
Appeal now pending.
Thoro Product Co., Inc.• Corporation sentenced to
– Criminal mischief• $750,000 fine
– Illegal storage of hazardous waste • $100,000 fine
– Illegal disposal of hazardous waste• $100,000 fine
– Ten years probation– Appealed to Colorado Supreme Court
Richard Ernest Newman, Jr.• Illegal storage of hazardous waste
– Department of Corrections for eight years
• Illegal disposal of hazardous waste – Department of Corrections for six years, consecutive to
(following) the above count
• The court retains jurisdiction regarding restitution • Appealed to Colorado Supreme Court
Colorado Supreme Court
• State contended that the disposal was on going
• Illegal Disposal charge dropped due to loss of statute of limitations
• Lesson learned by the prosecution– Better charge in the future
– failure to clean up and close as required
Thoro Product Co., Inc.• Corporation sentenced to
– Criminal mischief – for environmental damage • $750,000 fine – felony due to dollar amount
– Lowering property value of adjacent site to zero
– refusing to clean up under CERCLA– 1st time anyone convicted in Colorado
Thoro Product Co., Inc.• Illegal storage of hazardous waste
– $100,000 fine• Two drums
• Illegal disposal of hazardous waste – Dropped on appeal to the Colorado Supreme Court
Richard Ernest Newman, Jr.• Illegal storage of hazardous waste
– Department of Corrections for four years
• Illegal disposal of hazardous waste – Dropped on appeal to the Colorado Supreme
Court
Richard Ernest Newman, Jr.
• Mr. Newman is now in a half-way house in Denver after serving less than a year hard time