Lutz Testifies He "Didn't Have a Clue" about Handling Hazardous Waste
Brevard Public Works Director David Lutz's main defense in federal court: He didn't know the first thing about the dangers of lead-contaminated soil. Prosecutors present evidence showing the opposite.
ASHEVILLE — Brevard Public Works Director David Lutz would have done things differently, now that he knows better.
But back in May of 2016, he just didn’t.
He didn’t have training in hazardous waste removal, he told a jury Tuesday in U.S. District Court in Asheville.
He didn’t understand the technical language in the emails he received from the city’s consulting engineer, didn’t open a crucial attachment containing test results, and didn’t know the protocol for handling lead-contaminated soil.
“It’s embarrassing to say, but I had no idea,” said Lutz, 65.
His testimony came on the second day of what is expected to be a three-day trial on federal charges of mishandling hazardous waste. Closing arguments are scheduled to begin this morning and will be followed by jury deliberation.
Before the defense began presenting its case Tuesday, federal prosecutors had produced several witnesses and multiple documents intended to undermine Lutz’s defense and show he did have the knowledge needed to prove criminal intent.
Intent is the main subject of the trial because the defense and prosecutors had previously agreed on a long list of undisputed facts:
The soil was transported in May of 2016 from the firing range at the city’s sewage treatment plant on Wilson Road to make room for the expansion of a wastewater storage tank. The trucks that hauled the so-called “bullet dirt” didn’t have legally required paperwork. And it was stored for about a week at the Public Works’ operations center before being transported to the Transylvania County Landfill, neither of which were licensed to receive hazardous waste.
“The two parties agree on most of the facts, but what the parties don’t agree on is responsibility,’’ Assistant U.S. Attorney Lambert Guinn said during opening arguments. “The defendant took on that responsibility.”
Lutz acknowledged that was true during an interview at the start of the investigation in 2018, according to the testimony of William Oros, a criminal investigator with the U.S. Department of Environmental Protection.
Lutz “said he took (the contaminated soil) to the county landfill,” Oros said. “It was a financial decision. It was going to be too expensive to take it to Alabama.”
That location was a reference to an email that is at the center of the case, sent in December of 2014 from Michael Sloop, project manager with CDM Smith Inc., a city consultant on the $13.6-million storage tank project.
The email discussed the results of testing on the soil and included the term “hazardous waste.” It highlighted the concentration of lead measured, 129 milligrams per liter (more than 25 times the federal hazardous waste threshold).
The email concluded that if the soil was moved, it would need to be disposed of in a “Subtitle C landfill” (one permitted to accept hazardous waste) . . . “with the closest one I’m aware of in Alabama.”
But in his questioning of Lutz, Noell Tin focused on the technical terms in the email, such as the landfill classification and the acronym for the form of testing that produced the elevated reading — TCLP.
Did he understand what those letters meant, Noell asked Lutz.
“I didn’t have a clue,” he said.
At another point in his testimony, he elaborated: “I didn’t see anything in that email that said, ‘Houston, we have a problem.’ ”
During cross examination, Assistant U.S. Attorney Steven Kaufman worked to poke holes in the idea that Lutz — who testified he has worked at the Public Works Department for 33 years and has run it for about 15 — could be as ignorant about handling harmful substances as he claimed.
He introduced Lutz’s job description, which requires him to stay informed about government regulations. He grilled Lutz about his regular dealings with the state Department of Environmental Quality over the once-routine overflows of the city sewer lines.
He asked Lutz about training on state Department of Transportation rules about marking trucks carrying potentially harmful substances, and Kaufman got Lutz to acknowledge he knew the federal rules requiring specialized disposal of lead-bearing items such as the televisions and computer monitors collected by his sanitation workers.
Late Tuesday afternoon, Sloop took the stand for the prosecution and said that, in fact, Lutz was the one who brought up the matter of the potential harm of the lead in a telephone conversation in 2014. That led to an emailed response from Sloop, saying “there could definitely be an issue with lead contamination.”
Lutz was unusually communicative for a client, Sloop said, and along with regular texts and phone calls between the two during the four-year course of the tank project, the two exchanged numerous emails — at least 1,700 of them, Lutz had testified.
“He had a very curious personality,” Sloop said. “He had a lot of questions about how things were done.”
Those emails from CDM included notification that it planned to test the soil and, later, preliminary testing results, as well as an offer to interpret them.
Following the city’s decision to assume responsibility for removing the soil, Sloop included that job in an emailed “to-do list” of work that needed to be accomplished before construction could begin.
Earlier, Tin had also questioned Lutz about the emails, but with a different aim, building the case that a single one of these messages would have had little significance in the life of such a busy department head.
He asked about the time that had passed between the notification of testing results in December of 2014 and the removal of the “bullet-dirt” nearly 18 months later, about the vast number of emails that Sloop and Lutz had exchanged in the interim, about Lutz’s wide range of responsibilities, including parks and recreation, sidewalk maintenance and the city’s water and sewer systems.
He had also asked about Lutz career, in which he rose, with only a high school education, from a sanitation truck driver to a department head.
“He was a jack of all trades and a master of none,” another defense attorney, Emily Gladden, had said in her opening argument.
She had also offered — as proof of his lack of awareness of wrongdoing — that his plans for removing the soil were “absolutely no secret.”
Under questioning from Tin, Lutz said that he had sent emails of his waste-removal plans to then-Police Chief Phil Harris and, not knowing the danger of the material, had decided on transporting the material to the county landfill in a meeting with City Manager Jim Fatland.
But he had also initially described that removal job to Oros as transporting the soil directly from the firing range to the landfill, omitting the layover at the operations center that is the focus of two of the charges, Oros testified.
That was one of the examples of apparently deceptive actions on Lutz’s part that demonstrated “consciousness of guilt,” according to prosecutors' earlier court findings.
Others included encouraging his administrative assistant and fiancee to alter the dates on statements made by the employees — Lutz on Tuesday framed that as a simple clerical error — and advising those employees to make limited statements to Oros if they were interviewed.
This “never” happened, Lutz said on the stand.
And he omitted the part about the storage of the soil at the operations center because, he said, he didn’t direct that work and at the start of the interview with Oros was unaware that it had even happened.
“I didn’t know (the soil) went to the operations center,” he said, until he saw the work orders documenting this fact.
“Lo and behold it did happen,” he said.
Thank you Dan.