“Continuing Offense” Trumps Statute of Limitations Defense in RCRA Criminal Enforcement

In United States v. Tonawanda Coke Corp., the U.S. Court of Appeals for the Second Circuit, in an unpublished opinion released on January 11, 2016, rejected Tonawanda’s appeal of the lower court’s judgment adjudicating it guilty of criminal offenses under the Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA), and requiring Tonawanda to fund two studies, at a cost of $12.2 million to investigate the effects of its conduct. On appeal, the Court of Appeals considered Tonawanda’s two arguments. First, Tonawanda argued that its RCRA conviction should be set aside because it did not have fair notice that its conduct was illegal and, second, that the prosecution should be barred because the relevant five-year statute of limitations had expired. The Court of Appeals dismissed the first argument, holding that Tonawanda’s counsel had not preserved this issue at trial. Regarding the second issue, the crime for which Tonawanda was convicted was the illegal storage of hazardous waste. The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”