Brevard Public Works Director David Lutz Found Not Guilty on All Charges
Lutz had claimed he didn’t know the soil was hazardous. Another city official cheered the results.
ASHEVILLE — Jurors on Wednesday found Brevard Public Works Director David Lutz not guilty on all three federal charges he had faced in U.S. District Court in Asheville.
Sobs of relief could be heard from the row of friends and family members in the back of the historic wood-paneled courtroom after the verdict was read, and these same supporters later hugged and congratulated Lutz, 65, in the hallway.
Lutz declined to comment on the verdict.
“I am relieved for David,” said lead defense attorney, Noell Tin. “He has spent his life serving the city and is grateful for the city leaders who stood behind him.”
“Hallelujah!” said Mayor-elect Maureen Copelof when she heard about the decision from a reporter. “That is wonderful news. I am so pleased that justice has been performed.”
Like other city leaders had previously, she questioned whether Lutz’s actions were worthy of a criminal prosecution.
“I never thought this should have been a federal investigation,” said Copelof, a current City Council member who supported the decision to pay Lutz’s legal bills and allow him to continue in his job after his indictment last year.
“I think the defense attorney said it very well,” said Copelof, who was in the courtroom Wednesday morning for opening arguments. “ ‘Good people can make honest mistakes and that doesn’t make it a federal criminal case.’ ”
Lutz had faced charges that he ordered the hauling of hazardous waste without the legally required paperwork, that it was hauled to a facility not permitted to accept such waste — in this case DPW’s operations center — and that he allowed it to be temporarily stored there.
The soil was transported in May of 2016 from a law-enforcement firing range at the city’s sewage treatment plant on Wilson Road to make room for the plant’s expansion.
The two parties agreed to most of the facts in the charges, including that the trucks lacked the necessary paperwork, or “manifests,” and that the operations center lacked a permit to accept the waste.
In closing arguments, the two lawyers addressed the elements that they didn’t agree on — whether Lutz knew he was doing wrong and intended to do so.
Tin brought up a key piece of evidence in the prosecutors’ case — a 2014 email from a city consultant warning Lutz of the hazardous levels of lead in the soil and informing him that, if it needed to be moved, the city would be required to haul it to a properly licensed landfill, probably in Alabama
The language was unclear because it allowed for the possibility that the dirt would not have to be moved, in which case it was considered harmless. “This is not a broad-sided warning that you’re clearly dealing with hazardous waste,” Tin said, adding that it was “full of technical terms . . . things that meant nothing to David.”
He pointed to evidence showing that Lutz was a busy department head, with a wide range of duties and no specialized knowledge in handling contaminated soil.
“Transporting hazardous waste is not his thing,” he said.
Lutz took whatever actions he took not for personal gain, but to save city taxpayers money, and Tin cast back to a claim made in opening arguments that Lutz “made a mistake, but it was an honest mistake.”
This was backed up, he said, by the presence of almost all the city’s top leaders, who were in the courtroom Wednesday morning to support Lutz. Besides Copelof, they included Mayor Jimmy Harris, Mayor Pro Tem Mac Morrow and City Manager Jim Fatland.
Tin also asked jurors to take a broader perspective of the issue at hand, which was that a pile of contaminated dirt ended up in the wrong place.
“This is not the next true crime thriller,” he said. “There will not be a movie.”
Don’t buy it, Assistant U.S Attorney Steven Kaufman told the jury in his closing argument. Lutz was facing the challenges of completing a $13.6 million sewer expansion project on time and within budget.
The shortcut of transporting the soil, which ended up at the Transylvania County Landfill — also not permitted to accept it — avoided “delay, cost, more pressure.”
Lutz endangered city workers, who did not wear protective clothing during the move, by failing to tell them they were dealing with hazardous waste, Kaufman said; and Lutz had clearly been informed that it was hazardous.
A city consultant on the plant project had sent several emails discussing the lead and the testing results, which was also brought up in phone conversations. And the subject of disposal was conspicuously avoided once the city decided to move the lead itself, without a plan from the consultant, Kaufman said.
Kaufman also dismissed the idea that a key element of such an important project could get lost in Lutz’s other duties.
“Oh, I’m so busy! I’ve got so much to do!” he said, mimicking this claim. “Shame on him for saying that.”
Lutz did, in fact, have significant training and experience in dealing with hazardous waste, Kaufman said. And he hardly needed expertise to know that such a familiar toxin needed special care.
“Everybody knows lead is dangerous,” he said.