Commercial real estate owners and operators have understood for some time that they can be fined for not complying with federal or state environmental laws. What people sometimes forget, however, is that property owners and operators can go to jail for certain offenses. Just ask Attique Ahmad -- he came this close to going to jail. Fortunately for Ahmad, an appeals court has ruled that his trial was unfair and he is getting a new trial.

Ahmad purchased a combination convenience store and gas station in 1992. After the purchase, he noticed that his 8,000 gallon high octane gasoline tank was leaking. The leak was near the top of the tank, and as a result water entered the tank and mixed with the gasoline.

Ahmad called an environmental consultant who gave him a proposal to empty the tank so that a repair could be made. The price tag was heftier than Ahmad's budget allowed, so he decided to take matters in his own hands. Ahmad rented a pump and pumped the tank's contents into the street. Though Ahmad claimed that he only wanted to pump the water into the street, in fact 4,690 gallons of gasoline also went into the street.

Some of the gas went into a storm drain and then polluted a creek. The remaining gas went into a man hole, and was ultimately destined to enter the local sewage plant. Determining that there existed a risk of explosion, the facility and two nearby schools were evacuated. Ahmad was in deep trouble.

He was indicted on three federal environmental charges and convicted of two of them. In convicting Ahmad, the trial court had ruled that the government only had to show that Ahmad knowingly caused a discharge. The court ruled that it did not matter whether Ahmad knew that what he was discharging was gasoline. In fact, Ahmad maintained that he thought it was water that was being discharged. This argument is technically plausible since water is heavier than gasoline and the tank was pumped from the bottom.

Ahmad thought he was wrongfully convicted and the federal appeals court agreed. Most criminal charges, including the charges facing Ahmad, require a showing of knowledge that a law is being broken. It is not enough simply to prove that Ahmad knew there was a discharge, as the government had contended. To be criminally responsible, Ahmad had to know that it was in fact gasoline and not just water that was discharging into the street.

Thus, the morale of this story is two-fold:

1. Property owners and operators need not only worry about environmental fines -- some violations are criminal and can result in jail time
   
2. Its not who you know, but what you know, and how much you know that counts.
   

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.