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BREVARD – A federal indictment filed last month in Asheville’s U.S. District Court names only Brevard Public Works Director David S. Lutz in the mishandling of lead-laden soil from the city’s abandoned Police Department firing range.
He is singled out for ignoring a consultant’s warning that the soil’s lead concentration was 129 milligrams per liter — more than 25 times higher than the federal hazardous waste threshold. He’s the one who faces federal charges for ordering workers in May 2016 to transport 20 truckloads of the toxic dirt, without the legally required documents, to a city public works operations center not permitted to receive or store such material, the indictment said.
And it is Lutz, 64, who could serve up to 12 years in federal prison if convicted, according to the office of Andrew Murray, U.S. attorney for the Western District of North Carolina.
But the matter of lead in old firing ranges operated by the city of Brevard is about more than one city official in this town of 8,000 south of Asheville.
It demonstrates the costs of failing to address lead that accumulates over years of target practice, entangling the city in a lawsuit with a former consultant and forcing it to pay at least $330,000 to complete the state-mandated cleanup of its two former ranges.
It shows the potential for lead — a powerful neurotoxin known to lower the IQs of children — to seep into ground and surface water.
Lead and drinking water
One of the now-closed ranges is on the property of a city wastewater treatment plant on the banks of the French Broad River; the other is at a water treatment plant near the sole source of the city’s drinking water, Cathey’s Creek.
Though the city says tests have shown its water is free of lead contamination, investigation of the possible contamination of the river and creek is “ongoing,” according to an email from Laura Leonard, spokeswoman for the state Department of Environmental Quality’s Division of Waste Management.
The consequences of the botched soil removal have also spread to Transylvania County’s public landfill, where the hazardous waste was used as cover soil after being temporarily stored at the operations center.
Tests of soil and runoff at the landfill have revealed no dangerous levels of lead, and the county continues to capture, treat and monitor the seepage — called leachate — from the facility, said the county and DEQ.
But the disposal was not documented, the agency said, forcing its representatives to rely on the memories of landfill employees to determine where the waste had been spread.
In an email reply to questions about hazardous waste at the landfill, County Manager Jaime Laughter wrote that the assessment of the soil was performed where it “may have been placed.”
Finally, this case shows how easily high levels of toxic lead from firing ranges can remain in the environment.
Neither DEQ nor the federal Environmental Protection Agency maintains an inventory of firing ranges or require owners to provide a notification when they close.
The EPA’s Best Management practices do advise range operators to periodically remove the lead to avoid the determination that “harm is being posed or may be posed by the range to public health and/or the environment,” according to an EPA statement. If that standard is met, the range can be considered solid waste and subjected to a government-mandated cleanup or a civil suit.
In other words, cleanups happen when somebody speaks up. That was the situation in the only case similar to Brevard’s that Leonard mentioned — the cleanup, completed last year at a cost of nearly $500,000, of a shooting range at Southwestern Community College in Sylva in Jackson County.
The contamination there came to the state’s attention because the college contacted DEQ due to an employee’s concern about accumulated lead, said Tyler Goode, SCC’s public relations director.
Tip from neighbor
Similar to the situation in Sylva, the contamination from ranges owned by Brevard might never have come to light if not for Sherwin Shook, a neighbor of the water treatment plant on Cathey’s Creek on the border of Pisgah National Forest.
After learning the Police Department planned to build a new range on the grounds of the plant, Shook complained about the potential danger of pollution and errant bullets. “They were going to shoot into my property,” Shook said.
When DEQ representatives met with city officials at the site in June 2018, they noticed the remains of the old range’s “backstop,” the earthen berm that captures bullets fired in target practice. That, according to DEQ documents, prompted questions that revealed the history of both of the city’s abandoned ranges and the potential for lead contamination.
Brevard police and other law enforcement officers used the range at the water treatment plant from 1983 until 2005, when a severe flood forced its relocation to the city’s wastewater treatment plant next to the French Broad River. That range was closed in 2016 to allow for an expansion of the plant.
Because of concern about soil disposal — or lack of it — DEQ in late 2018 issued Immediate Action Notice of Violations that required soil testing at both former ranges.
The test for hazardous waste levels is performed by filtering liquid through solid waste and is designed to mimic the leachate created at landfills, according to Leonard’s email; 5 milligrams per liter of lead in this runoff is the Environmental Protection Agency’s threshold for hazardous waste.
Tests at both sites measured levels below that standard. But separate tests of lead content in the dry soil found concentrations well above the 270 mg-per-kilogram level that prompts the state to require remediation.
The cleanup plans written by the city’s engineering firm, S&ME, call for removing hundreds of tons of soil at the two sites and periodically testing it to determine whether batches of the waste can be disposed of in a conventional landfill or must be treated as hazardous waste.
This work was delayed by the COVID-19 pandemic, Brevard City Manager Jim Fatland said. But at a Sept. 28 meeting, he presented bids for the two jobs — $146,190 for the range site at the water treatment plant and $183,860 for the one at the wastewater treatment plant — and received funding to begin cleanup of the Cathey’s Creek site immediately.
“I’m anxious to make the call tomorrow and get the ball rolling,” he said, after the meeting.
Dennis Richardson, who operates the plant, said the city has tested a springhead that flows from near the backstop of the old firing range into Cathey’s Creek and found it free of lead. His department also tests lead in drinking water at sites throughout the city every three years. The last two testing cycles recorded levels that were “nondetect, which is basically nothing,” he said.
But S&ME’s cleanup plan says groundwater from beneath both contaminated sites likely flows toward nearby bodies of water. The firing range at the wastewater treatment plant is about 500 feet from the French Broad, the plan says, while Cathey’s Creek “is located about 50 feet to the north” of the range at the water treatment plant.
Contaminated soil removed
Before 2016, runoff from the old range at the wastewater treatment plant seeped through soil that was far more contaminated than it is now.
The engineering firm the city hired to design the plant expansion, CDM Smith, tested soil for lead at 10 locations at the former range site in 2014. Only the soil from the backstop showed elevated levels of lead, but it was highly elevated, producing the 129 mg-per-liter result mentioned in the indictment.
Though the soil was clearly toxic and though DPW workers moved it without protective equipment, the city has mounted a staunch defense of Lutz, who “is grateful for the outpouring of support he has received,” said his lawyer, Noell Tin, commenting on behalf of his client.
City leaders have pointed out that state-mandated testing of the operations center, where the soil was temporarily stored, did not show elevated levels of lead. The county landfill is sealed from groundwater with an impermeable liner.
And though it is not classified as a hazardous waste landfill — called a “Subtitle C” landfill by the EPA — it is permitted for the disposal of lower levels of lead, which it routinely accepts.
City backs Lutz
Fatland said Lutz made an honest mistake in an effort to save the city money. “He’s an individual always looking to get the most bang for the buck,” Fatland said.
Mayor Jimmy Harris closed the Sept. 28 meeting by saying, “This mayor stands shoulder to shoulder with David Lutz.”
City Attorney Michael Pratt sent out a press release shortly after the Sept. 16 indictment, calling Lutz “a valued employee and a friend to the city.” He also summarized a breach-of-contract suit, now pending in U.S. District Court in Asheville, that accuses CDM of failing to address the contaminated soil at the French Broad site.
If CDM had written a plan for its disposal, according to the suit, “the city and its employees would not have taken the shooting range backstop soil to the Transylvania County Landfill.” And in early 2016, the suit says, Lutz informed a CDM engineer of his plans to move the soil and received no objection.
CDM did not reply to a request for comment but did respond to the city’s legal complaint with a motion to dismiss. This mainly argues that the three-year statute of limitations for the suit had expired, but it also refers to the same warning highlighted in Lutz’s indictment.
In a 2014 email, CDM engineer Michael Sloop informed Lutz of the high concentration of lead in the soil. It could remain in place if it wasn’t disturbed by the plant’s construction, he wrote, but if the soil did need to be removed, it “will have to be disposed of in a Subtitle C Landfill, with the closest one I’m aware of in Alabama.”