Fifth Circuit decision opens loophole for water polluters.

In a case that reversed the conviction of a man who dumped enough gasoline into a sewer to contaminate a Texas town's sewage treatment system and cause evacuation of two schools, the Fifth Circuit Court of Appeals has narrowed its definition of polluters. The court ruled that prosecutors enforcing the Clean Water Act must show that alleged violators knew they were discharging dangerous effluents. Until now, prosecutors have only had to prove that the defendant discharged a contaminant without a permit.

The decision--which affects federal courts in Louisiana, Mississippi, and Texas--is being viewed as a setback for environmentalists. (United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996).)

Civil cases are not directly affected by the ruling, although it generally strengthens the hand of corporate defendants. (Paul M. Barrett, Court Narrows Its Definition of a polluter, Wall St. J., Jan.2, 1997, at A9.)

At trial, Attique Ahmad, owner of a gas station and convenience store, did not contest the fact that he pumped 4,700 gallons of fluid from a storage tank into a sewer after he realized that water was leaking into the underground tank. Although he consulted a repair expert who advised him that it would be "dangerous and illegal" to pump into the sewer, he rented a pump and was seen by witnesses pumping a liquid into the street and down a nearby manhole.

Ahmad argued that he thought he was pumping water and had merely been negligent in leaving the pump on too long (presumably allowing it to discharge lightweight gasoline from atop water in the tank). Ahmad wanted to call two witnesses to prove that he left the store while the pumps were still operating (that is, that he was not present and supervising the operation), but the trial judge refused, stating that Ahmad's state of mind--whether he knew he was pumping gasoline--was not relevant to the violation.

The Fifth Circuit thought it was. According to the decision, which was written by Judge Jerry E. Smith, the section of the Clean Water Act that makes it a felony to "knowingly violate" the law (33 U.S.C. 1319(c)(2)(A)) requires that "knowingly" be applied to all elements of the offense. In other words, it is not enough to prove that Ahmad knowingly operated the pump that discharged gasoline. He must be allowed at least to argue to a jury that he did not know he was pumping gasoline.

Smith cited two Supreme Court decisions. In United States v. X-Citement Video, Inc., the Court read "knowingly" to apply to each element of a child pornography offense. (513 U.S. 64 (1994).) In Staples v. United States, the Court found that statutes criminalizing possession of a machine gun required that defendants know what features of the gun make it an automatic weapon. (511 U.S. 600 (1994).)

According to Smith, Ahmad is likely to be tried again. Meanwhile, prosecutors in the three affected states face a tougher standard for proving violations of environmental laws.