United States v. Ahmad (101 F.3d 386, 1996)

JERRY E. SMITH, Circuit Judge:

Attique Ahmad appeals his conviction of, and sentence for, criminal violations of the Clean Water Act (“CWA”). Concluding that the district court erred in its instructions to the jury, we reverse and remand.

I.

This case arises from the discharge of a large quantity of gasoline into the sewers of Conroe, Texas, in January 1994. In 1992, Ahmad purchased the “Spin-N-Market No. 12,” a combination convenience store and gas station located at the intersection of Second and Lewis Streets in Conroe. The Spin-N-Market has two gasoline pumps, each of which is fed by an 8000-gallon underground gasoline tank. Some time after Ahmad bought the station, he discovered that one of the tanks, which held high-octane gasoline, was leaking. This did not pose an immediate hazard, because the leak was at the top of the tank; gasoline could not seep out. The leak did, however, allow water to enter into the tank and contaminate the gas. Because water is heavier than gas, the water sank to the bottom of the tank, and because the tank was pumped from the bottom, Ahmad was unable to sell from it.

In October 1993, Ahmad hired CTT Environmental Services (“CTT”), a tank testing company, to examine the tank. CTT determined that it contained approximately 800 gallons of water, and the rest mostly gasoline. Jewel McCoy, a CTT employee, testified that she told Ahmad that the leak could not be repaired until the tank was completely emptied, which CTT offered to do for 65