PW exclusive: Documents reveal years of illegal dumping near Falls Lake

By: - August 10, 2019 6:00 am
An aerial view taken in 2018 of 550 Benny Ross Road. The property owner, Russell Stoutt, claimed he was preparing the land for a horse farm, a house and then crops. Falls Lake can be seen in the background. (Photo courtesy Ruth McDaniel)

Complex rules, poor coordination by regulators have allowed a single property owner to put Raleigh’s water supply in harm’s way

Update: A Durham County spokeswoman issued a statement after this story was published. We have included it at the end of the story. However, Policy Watch did not say that the county granted Stoutt an agricultural exemption. In addition, the county has yet to respond to a question of how it did not know who was responsible for dumping on Puryear’s property.

First, the land suffocating under 40 feet of dirt and construction trash was to become a horse pasture.

But no horses ever arrived.

Then, the man responsible for the dumping said he planned to put a house there.

But no house was ever built.

Then, the man said, there would be crops.

But no crops were ever planted.

Instead, for more than three years John Russell Stoutt III, already notorious among state environmental regulators for previous violations, illegally accepted hundreds of tons of debris, including plastic, rebar and unknown materials, including some from the state Department of Transportation, on his property near Falls Lake.

Falls Lake, which straddles Durham and Wake counties, is classified as a critical area by the state because it serves as the major drinking water supply for the city of Raleigh.

The dumping occurred at Benny Ross Road in rural Durham County, just a half-mile from the lake and within its sensitive watershed.

The story of Stoutt and the illegal activity, documented in dozens of violations, demonstrates how repeat offenders can endanger the environment and exploit loopholes in state law with impunity.

“There’s no tracking or verification of what’s being dumped,” Ruth McDaniel, a soil scientist and farmer who lives near the dumping sites, told the Durham Soil and Water Conservation District board earlier this summer. “It could contaminate the groundwater and the soil.”

The pile of fill was two stories high with steep, unstable slopes. A neighbor, Ruth McDaniel is pictured in front of the mound with her dog. (Photo courtesy Ruth McDaniel)

To draw attention to the problems, McDaniel and several of her neighbors emailed or met with Durham county commissioners, city and county environmental officials, the N.C. Department of Environmental Quality, the N.C. Department of Transportation, state lawmakers, and the Durham Soil and Water Conservation District Board. They filed public records requests, recorded truck trips, shot photos and video as evidence, called the sheriff, and even talked with Stoutt himself.

“Our system of environmental regulation is fragmented between the Corps, DEQ and the county” McDaniel told Policy Watch. “[Stoutt’s] exploiting a fragmented system.”

So far, state and county regulators have not collected the $100,000 in fines that Stoutt owes. After a year of receiving complaints from neighbors, Durham County officials say they still don’t know who is responsible for other dumping sites in the neighborhood, some of which started after Stoutt’s Benny Ross Road operation shut down.

“One property is shut down and it goes to another,” said Curt Richardson, a Durham County Soil and Water Conservation District Supervisor, earlier this summer. “My major worry is the watershed and the lake.”

Stoutt’s attorney, Ben Clifton, declined to comment at length, but told Policy Watch that the fines “are not final. We are working on that and remediation [of the property]. We’re cooperating with the county,” he said. “It’s a nonstory.”

Years of dumping near a troubled lake

Aquintessential summer evening at Falls Lake: The sun floats toward the western horizon, backlighting boats as they skim the reservoir’s glassy surface. People fishing drop their lines in the water. Campers fire up their grills against the soundscape of cicada song.

Yet the beauty of the lake is belied by what lies in its depths. About a third of the 12,000-acre reservoir — the headwaters of the Neuse River — are designated as “impaired” by the EPA.

One of its impairments is turbidity, or cloudiness of the water. Excessive amounts of dirt, clay, algae and other debris block light, which can harm fish and aquatic life. The lake can fill in faster. Bacteria and metals can piggyback on the dirt particles, further polluting the waterway.

Pollution in Falls Lake can present serious problems downstream — not only for the hundreds of thousands of Wake County residents who rely on Falls Lake for their drinking water, but for the communities along the already-polluted Neuse River, from Raleigh all the way to New Bern.

And that’s why regulators, after being prodded by several Durham County residents, became concerned about Stoutt, the enormous gashes in his land, and the tons of dirt being dumped at 550 Benny Ross Road.

With just eight houses flanking it, Benny Ross Road is less than a mile long. Stoutt’s property lies a half-mile from the lake. He lives in Wake County, but bought this tract, just under nine acres, in April 2017, about a year after the county shut down an illegal dumping and land clearing operation, four miles away at Kingsmill Dairy Farm, where Stoutt worked.

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After buying the Benny Ross Road tract, Stoutt restarted his disposal business almost immediately, neighborhood residents say, with as many as 100 trucks per day, Monday through Saturday, speeding on the two-lane road.

At the time, Stoutt had two permits — one for agricultural use and another for land disturbance — that allowed him to spread the material on his property. He claimed the tons of dirt would be used as “beneficial fill,” to level his land for a horse pasture. But the dirt was cluttered with construction debris, according to site photos taken by neighbors and sent to regulators, including plastic and rebar.

In May 2017, neighbors began complaining to county, city and state officials, some of whom seemed alarmed.

“Less than a mile from Falls Lake seems to be a poor place not to control dirt,” wrote Jason Watson, a DOT assistant district engineer in an email to Ryan Eaves, Durham County storm water and erosion control manager. “I’m not sure how these sites operate as a landfill (dirt/rocks, not trash) this close to the lake. This doesn’t appear to be a simple farming operation.”

Mary Whaley, an environmental senior specialist at DEQ, wrote to Durham County officials notifying them of neighborhood concerns. “It is Russell Stoutt again (he did the filling at Kingsmill and Southview Road sites),” Whaley wrote, “having dump truck after dump truck bringing soil, concrete, etc. onto this property and calling it beneficial fill. He is saying that it is going to be horse pasture, and that is what he said when dumping on Southview Road. They know what to say to be able to do it.”

When no horses appeared, though, Stoutt changed his story. He said he planned to build a house. Then, county officials said, he told them he planned to grow crops.

In early 2018 Stoutt began accepting liquid lime slurry, a byproduct of a highway construction process called diamond grinding. In diamond grinding, the road surface is sanded and smoothed. The leftover material — think of it as concrete sawdust — is mixed with water to a gravy-like consistency. Since concrete contains lime, which is an alkaline, slurry is often used on land to reduce the acidity of soil in order to make it more suitable for agriculture.

The diamond grindings came from a DOT construction project on Interstate 85. As long as the proper permits are in place, it is legal to put slurry on farmland.

Hundreds of dump trucks began hauling slurry each day to Benny Ross Road — even though it is a dead-end — often working through the middle of the night. The slurry was then offloaded into plastic-lined pits for holding, until Granville Farms, a farming and biosolids company, re-loaded it into tankers and transported it to other farms.

It took months, but eventually the county zoning department shut down the nighttime operations.

“There seems to be a lack of will to enforce the law by using punitive measures,” McDaniel, the soil scientist and neighbor of Stoutt told Policy Watch. “I’m extremely frustrated. His activity has put the lake at risk.”

Durham City officials became skeptical of Stoutt’s story. “We signed off on this as a farm but an aerial [photo] shows dump trucks lined up and I don’t see any crops or livestock,” Dennis Doty, a senior planner, wrote to the county engineering department. “The process is commercial even if the byproduct is agricultural.”

The slurry pits were lined with plastic, but that may not have been adequate to protect the groundwater. Testing conducted on behalf of DOT showed the soil’s pH level — which measures the acidity or alkalinity — beneath the liner was 100 times more alkaline than that of the native soil.

“This means the lining material was leaking,” McDaniel said.

When DEQ tested streams on the Benny Ross Road property, it found levels of aluminum and nickel that exceeded surface water standards for Falls Lake tributaries. High levels of these elements can harm or kill fish.

The water also contained lower, but still notable amounts of strontium, selenium, lead, titanium, chromium and copper. At high levels, these contaminants can damage the lake’s ecosystem and downstream rivers, as well as stress water treatment plants. Some of these contaminants do not have surface water standards. (Documents show some results for other contaminants could not be verified because of quality control issues.)

Finally, 18 months after the first community complaint in the fall of 2018, the county shut down Stoutt’s operation on Benny Ross Road. Inspectors noted what neighbors had been saying all along: That in accepting the slurry for “holding,” Stoutt was essentially operating a wastewater treatment site. That the dump site was accepting more than just innocuous dirt and concrete. “It is inconsistent with inert debris,” an email reads.

Ben Clifton, Stoutt’s attorney, told Policy Watch that Stoutt hasn’t “done anything to violate the Durham County ordinances on purpose.”

While state and county regulators were monitoring Stoutt’s operations on Benny Ross Road, dumping began about a mile away.

This time a different landowner, Jim Puryear of JTT Properties, claimed he was using beneficial fill to prepare a pasture at 101 and 201 Southview Road.

A September 2017 email from DOT to Ryan Eaves, manager of the Durham County erosion and sedimentation division

The disposal resulted in violations of the Clean Water Act. According to the US Army Corps of Engineers — which built the lake and along with the state and county, regulates it — the “beneficial fill” wound up in part of a wetland. Documents from June 2018, show that someone dug a ditch through the wetland area, and 750 feet of stream had been scoured of plants and trees, key to filtering contaminants from the waterway.

Part of the illegal activity also occurred within the 100-year federally designated floodplain.

Both the Corps and DEQ cited Puryear for the violations and ordered him to clean up the property. The citation did not include a fine.

Legally the landowners, not dumpers, are responsible for unauthorized disposal. It is unclear who did the dumping on Puryear’s land. After a year, dumping is still occurring, but so far, no horses, livestock or crops are on the property.

Clifton said he has “no knowledge” of Stoutt being involved in the dumping at Puryear’s. However, Stoutt was copied on the DEQ citation, along with the US Army Corps of Engineers.

Puryear did not return phone calls from Policy Watch asking for clarification.

Exploiting legal loopholes

The cases of Stoutt and Puryear show how people can hide behind the legal definitions of a “farm” and “beneficial fill” to circumvent the law and indiscriminately dump debris.

The state Department of Agriculture requires a registered farm to be a minimum of 10 acres; five acres if it’s for horticulture alone. Since Stoutt has less than nine acres on Benny Ross Road, his property does not meet the minimum size for row crops or livestock, and should not qualify for an agricultural exemption.

Durham County also requires the landowner “to be actively engaged” in farming “under a sound management program.”

However, Curt Richardson, a Durham County Soil and Water Conservation District supervisor, said at a meeting in June that the practices that McDaniel described did not appear to be consistent with farming or beneficial fill. “You can’t farm with a liner,” Richardson said of Stoutt’s slurry operation.

And McDaniel said that in her scientific opinion, it is difficult if not impossible to grow crops on hard-baked, compacted subsoil that is being used as “fill.”

“The beneficial fill rule is there for a good reason,” McDaniel said “But it’s being exploited.”

Emails between DEQ and Durham County staff also show the regulators’ frustration with Stoutt’s claim. He had an agricultural exemption that allowed him to accept beneficial fill.

“As long as he [Stoutt] is saying it is beneficial fill, I can’t do anything,” wrote Mary Whaley, an environmental senior specialist at DEQ. “I wish there was more I could do about it. We all know it is disposal under the guise of beneficial fill.”

When Stoutt worked at Kingsmill, the farm owners also claimed they were using beneficial fill for a horse farm. No such farm ever materialized.

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There are state statutes governing beneficial fill. And judging from their violations, Stoutt and Puryear broke most all of the rules. No excavation is allowed at beneficial fill sites. The fill is supposed to improve land use. It can contain only concrete, brick, rock, gravel and uncontaminated soil. The fill disposal must comply with all local, state and federal regulations, including groundwater standards.

It would be difficult for state lawmakers to change the broader legal definition of beneficial fill.

“This is a lot bigger than Durham County; it affects the whole state,” said Talmage Layton, chairman of the county soil and water board. He is also president of the Durham County Farm Bureau.

Thousands of law-abiding farmers could be penalized, Layton said. “We have to be careful not to harm them.”

$100,000 in fines, yet to be paid

Stoutt owes $94,000 to Durham County for multiple permit and zoning violations related to the dumping, and another $6,100 to DEQ. He has yet to pay a penny, according to county and state officials.

Those amounts are far short of the maximums Stoutt, who has several low-level criminal convictions in Wake County, could have been penalized: $25,000 a day by the state and another $5,000 by the county. A DEQ spokeswoman said staff considered the “statutory factors and the penalty assessment is consistent with similar civil penalty assessments.”

A DEQ spokeswoman told Policy Watch that Stoutt’s account has been sent to the state Attorney General’s office for collection. County spokeswoman Dawn Dudley said officials will continue to try to collect the penalty and have been “working closely with Mr. Stoutt’s attorney” to do so.

“The county’s top priority has been to ensure the immediate stabilization of the property and abatement of the violations,” Dudley said.

McDaniel said the comparatively small penalty and the delay in collecting it tell environmental violators that they can pollute with impunity. “Bad actors can simply continue with business as usual while the process plays out, which can take well over a year,” McDaniel said. “They benefit from continuing their operations, even when they have been notified that they are violating environmental laws.”

Just last month, McDaniel took photos of dirt and trash piled on land along Baptist Road, which is about a mile from Benny Ross Road. Neighbors saw someone digging a large hole, dumping debris in it and covering it up. Summer rains, McDaniel said, washed some of the dirt away, leaving the trash exposed again.

Durham County sent a statement on Saturday, Aug 10:
“Durham County’s top priority is to provide a high level of environmental stewardship which includes ensuring that its citizens abide by the requirements of its sedimentation and erosion control ordinance.  This story indicates that Durham County’s Erosion Control Office granted Russell Stoutt an agricultural exemption of the sedimentation and erosion control guidelines. This is incorrect. An agricultural exemption exempts the property owner from having to obtain a land disturbing permit. Durham County’s Erosion Control Office did not grant an agricultural exemption to Russell Stoutt.

Despite any alleged claims of horses or crops, when it was determined that Mr. Stoutt was engaging in land disturbing activity, Durham County informed him that such activity required a land disturbing permit.  Mr. Stoutt applied for the permit, paid the required fees, and was granted a land disturbing permit for his property, as allowed by the ordinance.  When Mr. Stoutt was in violation of the land disturbing permit, he was cited for such, and ultimately his permit was revoked.  Durham County continues to work within our authority to closely monitor the area to ensure that the property at issue remains stabilized and that Mr. Stoutt, and all property owners, are in compliance with the ordinance.

Durham County takes the concerns raised seriously and continuously works to tighten and/or close as many ordinance loopholes as possible, while still remaining in compliance with state law.  As such, it has proposed revisions to its Sedimentation and Erosion Control Ordinance.  These proposals include, but are not limited to, requiring property owners to formally apply for an agricultural exemption (no such exemption is to be presumed), implementing a formal review process of such exemption application, requiring property owners to disclose the source of fill dirt when requested by the County, and limiting the amount of fill dirt dumped by permit holders.

All of these changes will better enable Durham County to continue providing environmental stewardship best ensure that its citizens are complying with the requirements of its ordinance.”

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.