Not David Lutz's Actions, but His Intentions: The Crucial Question as Brevard Official Heads to Trial
A city-paid lawyer for Lutz, Brevard's public works director, will argue he didn't knowingly do wrong. Federal prosecutors hope to provide evidence of "literal cover-up."
BREVARD — Yes, Brevard’s public works director, David Lutz, directed employees to haul lead-laden soil from an old law-enforcement firing range to his department’s operations center on Cashiers Valley Road, says a court document signed by his attorney, Noell Tin.
There’s no disputing that this soil contained enough lead to meet the federal definition of hazardous waste, according to the “stipulation” agreement that lays out uncontested facts in Lutz’s case.
The drivers didn’t have the paperwork legally required to transport the material, and the center wasn’t permitted to receive it, according to the document.
Lutz, however, “adamantly denies . . . he committed any crimes,” according to the agreement, “and asserts that he lacked criminal intent.”
So it is that issue — intent — that has emerged as the main point of contention in the case against Lutz, 65, whose trial on three charges of mishandling hazardous waste is scheduled to start Monday in U.S. District Court in Asheville.
Federal prosecutors hope to prove Lutz was aware of the seriousness of his actions by providing information he misled investigators and, to cover up his misdeeds, ordered the alteration of paperwork and the dumping of fresh soil over contaminated ground.
Tin’s opposing view — acknowledging many of the facts of the case while disputing that Lutz knowingly did wrong — mirrors that of city leaders who have backed Lutz since he was indicted in September of 2020.
Mayor Jimmy Harris and most City Council members have depicted Lutz as a dedicated employee who made honest mistakes in trying to save the city money. They have agreed to pay his legal bills and have allowed Lutz, a city employee since 1986, to remain in his $100,000-per-year job. And Mayor Pro Tem Mac Morrow has said the matter would have been better handled by regulatory action than criminal charges carrying the possibility of time in prison.
About 20 truckloads of soil, some of which was contaminated with lead at more than 25 times the federal hazardous waste standard, was removed from the range at the city’s sewage treatment plant on Wilson Road to make room for the plant’s 2016 expansion, according to court records.
These records also say this dirt was temporarily stored at the operations center before being dumped at the Transylvania County landfill, which is not permitted to accept the waste.
One factor that may help prove that Lutz didn’t know this was illegal — the lack of guidance from the consulting company involved with that expansion project, CDM Smith Inc. Tin wrote in the stipulation agreement: “The defendant reasonably relied on the direction (or lack thereof) from others.”
That issue has also been argued before, in a suit the city filed against CDM after the federal Environmental Protection Agency (EPA) launched its investigation in 2018. And not all the information from CDM absolves Lutz. In fact, an email from the company informing Lutz of soil testing results is so central to the government’s case it was quoted in the indictment.
Most of the soil contained lead below the level considered hazardous by EPA, the email said, but the soil from the range’s backstop had been measured at well above that level and, if moved, could only be disposed of in landfill permitted to accept such waste, “with the closest one I’m aware of in Alabama.”
But that email was sent in 2014, and CDM failed to provide a plan for the soil’s removal, the suit alleged (CDM argued the city didn’t ask for one), and failed to respond to a 2016 email from Lutz when he requested advice for disposing of the soil.
If some of these facts may be discussed in the trial, the suit itself will remain mostly off limits.
Information about evidence lawyers plan to introduce comes from a series of filings seeking to either admit or block testimony from coming before the jury.
In one of these documents, prosecutors argued that the suit shouldn’t be mentioned while noting its claims didn’t exactly get a resounding affirmation in court.
The case was settled for what one of the U.S. Assistant Attorneys handling the case described as a “‘nuisance fee’ . . . a small fraction of just the amount of money it would have cost in attorneys’ fees to litigate the case.”
That amount was $25,000, according to City Attorney Mack McKeller, and records show the two sides agreed to a dismissal and will pay their own legal fees.
Tin, in his response to prosecutors, agreed not to discuss the suit, except under limited circumstances during cross examination of government witnesses.
Tin, however, pushed back hard other attempts to block his right to call witnesses ready to testify to Lutz’s good character and to question city employees about statements he made that might show a lack of intent. He also sought to show Lutz’s actions caused no lasting environmental damage.
How much of this information will the jury get to hear? If that’s been decided it’s not yet in the publicly available file and the lawyers, as is customary in federal cases, did not respond to requests for comment. But if the back-and-forth arguments over admitting evidence don’t provide a complete forecast of the trial, they do show how the two sides generally hope to pursue their case.
On the matter of environmental harm: A city contractor completed the state-mandated cleanup of soil from the range at the treatment plant and from another former law-enforcement firing range at its drinking water plant, on Cathey’s Creek Road. Tests have shown no remaining elevated levels at either of these sites or at the landfill — and no detectable levels of lead in the city’s drinking water.
While prosecutors stated such information shouldn’t be mentioned because it isn’t an element of the charges, Tin countered that the government’s “argument overlooks that lack of environmental harm will be relevant for other reasons, such as corroborating Mr. Lutz’ lack of criminal intent.”
Tin should be allowed to call character witnesses, he argued, citing past findings in federal cases that jurors should consider a “reputation for truth and veracity, or honesty and integrity, or as a law-abiding citizen.”
Prosecutors argued that city employees should be blocked from repeating potentially exculpatory statements that Lutz made because they amount to hearsay. No, Tin countered, because these statements are not meant to prove facts, but to show “state of mind.”
Furthermore, he argued, prosecutors are taking a “counterintuitive position” of trying to block some testimony about Lutz’s out-of-court statements to city employees while making use of other such statements themselves.
The government absolutely does plan to call these witnesses, prosecutors wrote, saying their testimony will demonstrate Lutz knew the potential legal consequences of his actions. Or, as one of their filings puts it, the statements are “probative of the defendant’s consciousness of guilt.”
Lutz’s “subordinates” were the ones who told EPA’s criminal investigators that the soil had been temporarily stored at the operations center and not taken directly to the landfill “as the defendant had previously represented,” according to an August filing from prosecutors.
They also asserted in court documents that “Defendant Lutz engaged in a literal ‘cover-up’ of his illegal conduct by having soil dumped over the area of the operations center believed to contain lead waste.”
He encouraged public works employees to write limited statements and then had his “fiancee and administrative assistant type the statements and back-date the typed versions to appear they were made a few days before the EPA actually conducted their on-site investigation, instead of afterwards, which was actually the case,” they wrote.
And Lutz, prosecutors wrote, not only encouraged his employees to produce “these one-paragraph statements, but he also told them that, if he were them, he would not say anything to the EPA other than what was in the statements.”