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

Investigated By

Jeff Martinez

EPA-CID

Robert Kalutkiewicz

OAG-SPU

And

HOW DID THE INVESTIGATION BEGIN?

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

July 1996

TWINS INN INVESTIGATION

Contacted Joyce Ackerman,On Scene Coordinator,

EPA Region VIII

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

Solvent Plume

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)

THE DRACONIAN RAMPAGE

AKA SEARCH WARRANT

Executed November 13, 1996

• 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.

September 1998

THE INDICTMENT

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:

January 22, 1999

THE TRIAL

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.

February 5, 1999

THE VERDICT

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

May 27, 1999

THE SENTENCING

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.

May 27, 1999

THE SENTENCING

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

Solvent Plume

“We are not borrowing (the earth) from our children, we’re stealing from them--and it’s not even considered a crime.”

David Brower 1912-2000