Somebody Is Guilty
Last updated 9/30/2020 at 3:35pm
Late last month City of Brevard Public Works Director David Lutz was issued a federal indictment on charges related to “Handling, transportation and storage of hazardous waste” in May of 2016.
The Department of Justice alleges Lutz violated federal law by illegally directing Public Works employees to dig up soil known to be contaminated with lead from the backstop of the city’s firing range and directing them to store it at the Public Works Operation Center, even though the center is not permitted as a treatment, storage or disposal site for hazardous waste.
The indictment should not have been a surprise to the city. In January, City Attorney Michael Pratt said in a press release that the U.S. Attorney’s office “has indicated that criminal charges may be filed against the city and/or at least one employee for disposing of firing range dirt in an improper fashion,” and that the N.C. Environmental Protection Agency (EPA) had issued several subpoenas to City of Brevard employees to appear before a grand jury.
After Lutz was indicted, however, Pratt placed the blame on CDM Smith, an engineering firm the city had hired. Pratt said the city has filed a lawsuit against CDM Smith that alleges they failed to notify Lutz, and the city, that it was violating a federal law.
“It is the city’s position that CDM Smith should have notified it, and Mr. Lutz in particular, as to those requirements and others,” Pratt said in a press release. “Several months ago, the city filed a lawsuit against CDM Smith relating to this matter, which is pending in U.S. District Court for the Western District of North Carolina.”
According to Pratt, the charges revolve around the city’s removal of dirt from the backstop of a firing range formerly used by the Brevard Police Department. When the firing range was closed, CDM was “to test the soil for lead and advise the city.”
“Nothing was done with the soil from the back stop at that time because CDM Smith said it would not have to be removed,” said Pratt. “Some time later, the city found that the lead would have to be removed. Mr. Lutz notified CDM Smith of that, and of his plans to remove it. CDM Smith did not respond to that notice.”
Based on Pratt’s comments alone, several questions need to be answered. Why did CDM Smith say the soil would not have to be removed? From whom did the city later find out the lead would have to be removed? If CDM Smith did not respond to requests for assistance, why didn’t the city ask the governmental authority or whomever told the city the lead had to be moved what the city should do? If the edict came from state or federal authorities, why didn’t the city ask them for clarification regarding hauling, storage and disposal?
One would hope, and think, that the Department of Justice asked these questions and many more before handing down indictments. If several subpoenas were issued to city employees, they should have learned who made what decisions when regarding the transportation and storage of the lead.
While the federal government has indicted Lutz and the City of Brevard has sued CDM, no one is disputing federal law was violated, that contaminated soil was stored at the Public Works Department’s Operations Center on Cashiers Valley Road for approximately one week before being taken to the county landfill.
The removal, transportation, storage and disposal of lead or any other hazardous waste is no frivolous matter. And while some people may think it is not serious in this case, it should be noted that the CDC lists firing range instructors as a job where people can be exposed to lead and lead poisoning. And if some of the lead seeped into the ground while at the Public Works Operation Center, that too could present a problem. Pratt is correct that no one should be considered guilty until after the accused receives a fair trial. However, since no one is disputing a violation occurred in the transportation and storage of the contaminated dirt, somebody is guilty. And the guilty party needs to pay the consequences for that violation.