agriculture, Courts & the Law, Environment

NC Supreme Court rules in favor of attorney general in Smithfield case, deals setback to conservatives

The North Carolina Supreme Court delivered a blow to conservatives today, ruling that the attorney general’s office is within its authority to allocate environmental grants from the historic Smithfield Foods agreement.

In its decision, the Supreme Court reversed the state appellate court’s ruling against the attorney general’s office. It returned the case to the appeal court for any outstanding issues unrelated to today’s decision.

The case, New Hanover County Board of Education vs. Josh Stein, began more than three years ago when Francis X. DeLuca, the former director of conservative think tank the Civitas Institute, sued the attorney general’s office, then occupied by Roy Cooper.

The Smithfield agreement was a deal brokered in 2000 among then-attorney general Mike Easley, the pork producer and its subsidiaries to compensate for the environmental damage caused by industrialized hog farms.

DeLuca had argued that the $50 million, payable to the state by pork producer Smithfield Foods over 25 years was not a voluntary contribution, but actually a civil penalty. Instead of the attorney general disbursing the Smithfield funds to environmental nonprofits, cities and other eligible groups, as laid out in the agreement, that money should have been reallocated to school districts, DeLuca argued.

Under state law, civil penalties and forfeitures are allocated to school districts in the counties where the offenses occurred.

The fact that DeLuca brought the suit, in effect advocating for public schools, is a smokescreen. The Civitas Institute has long criticized the public school system, favoring instead charter schools, the privatization of education and further cuts to public education. Instead, the lawsuit was really about eliminating funding for environmental groups and projects.

However, an appeals court found that DeLuca did not have standing to sue, and the New Hanover County Board of Education became the plaintiff.

From 1995 to 2000 waste lagoons, not all of them Smithfield’s, “had spilled millions of gallons of waste into North Carolina waterways,” according to court documents, “contaminating surface waters and killing aquatic life, while seepage from waste lagoons impacted groundwater supplies.”

Under the terms of the 2000 agreement, Smithfield pays $1 per hog it owns in North Carolina each year, up to $2 million annually, roughly equivalent to $50 million. The agreement is valid through 2025.

Of the voluntary funds, about $15 million is to be spent on developing “environmentally superior” waste management systems, although Smithfield has not made any meaningful progress toward those solutions.

The payments, testified several officials in affidavits, were not intended as penalties for wrongdoing, but rather “voluntary contributions” that the corporation paid in order to burnish its image by “working toward better waste management solutions.”

In fact, as the Supreme Court pointed out, state environmental regulators continued to penalize Smithfield after the agreement was signed. According to court documents, Christine Lawson, program manager for the Department of Environmental Quality’s Animal Feeding Operations Program, provided an affidavit listing approximately 19 civil penalties against Smithfield and its subsidiaries during the year preceding the execution of the agreement and the year following the execution of the agreement.

According to Lawson, “almost half of those penalties were assessed after the execution of the agreement and were based upon notices of violation that had been issued prior to the agreement’s execution.”

The Smithfield contributions go into an escrow account managed by PNC Bank. Each year, as part of the Environmental Enhancement Program, the attorney general’s office solicits proposals and then awards funding to groups working on environmental projects that would improve water quality in the state. Nonprofits, government agencies and other groups can apply for the grants, which max out at $500,000.

While the applications are reviewed by a panel of representatives for state agencies, universities and environmental nonprofits, the attorney general has the sole authority to award choose the recipients and award the money.

The attorney general’s office has awarded $24 million to grant recipients since the fund’s inception. It recently solicited another round of applications.

Wake County Superior Court Judge Paul Ridgeway originally ruled in favor of the attorney general’s office. The New Hanover Board of Education appealed the decision, and the state appellate court was split on the matter, which automatically sent the case to the NC Supreme Court.

Supreme Court Justice Sam Ervin IV wrote the opinion for the majority of the court; Judge Paul Newby wrote the dissent.

Sound Rivers and the NC Coastal Federation intervened on behalf of the attorney general’s office. They were represented by the Southern Environmental Law Center. The New Hanover County school board was represented by former Republican legislator, attorney Paul Stam.

COVID-19

North Carolina experiencing “first wave” of COVID-19 cases, more likely to come

The peak of flu season occurred in early February. After reports of flu-like illness fell, by early March, they began increasing again, because of COVID-19. (Graph: NC DHHS)

North Carolina is in the “acceleration phase” of the COVID-19 pandemic, state epidemiologist Dr. Zach Moore said today, with the number of cases expected to rise over the next two weeks.

“There’s every indication that it’s really ramping up now,” Moore told the media during a call-in press conference. “We have not peaked.”

As of March 30, more than 1,300 people have been diagnosed with COVID-19; six people have died. Ninety-one have been hospitalized, according to the NC Department of Health and Human Services. However, Moore reiterated that the number of reported cases is an undercount. For example, it doesn’t include people who have not gone to the doctor and who have mild or no symptoms.

Gov. Roy Cooper has issued a statewide stay-at-home order, effective at 5 p.m. today, through April 30. Only businesses deemed essential, such as groceries, can remain open. Restaurants are limited to take-out or delivery services. Gatherings of more than 10 people are prohibited. People should also stay at least 6 feet apart from one another.

The state’s flu surveillance regions are also reporting data about confirmed and suspected COVID-19 cases, which helps epidemiologists better understand the outbreak. (Map: NC DHHS)

To better estimate the number of cases, the state has directed doctors and medical facilities to conduct “syndromic surveillance,” which means they are reporting incidents of fever and cough, even lacking a formal diagnosis of COVID-19. “This allows us to get to people who present for medical care but who can’t be tested,” Moore said.

“Lab-confirmed counts are never the whole picture. We need to rely on other evidence-based tools. This is a rapidly evolving situation, and we need to use data from different strategies to understand the spread.”

State, commercial and hospital labs have conducted 18,945 tests, as of March 30. The state lab is caught up with its tests, Moore said, but some commercial and outside labs are experiencing backlogs.

The effects of the statewide stay-at-home order won’t be realized for about two weeks, equivalent to the extent of the 14-day incubation period for the new virus. The average incubation period — the time of exposure until the appearance of symptoms — for COVID-19 is five to seven days.

There are seven influenza surveillance regions in North Carolina; health officials from these areas are also reporting data related to COVID-19 symptoms. After influenza-like illnesses peaked in early February — the result of the incidences of the common flu — the numbers began to fall. But since early March, all seven regions have reported an increase in influenza-like illnesses. Emergency room visits for fever and cough have also increased over the same period.

“That tells us that what we’re seeing now is likely being driven by COVID-19,” Moore said.

No antibody tests are yet available to detect those who have been infected but who had no symptoms. This information would help researchers and epidemiologists better understand the full reach of the virus — and to control future outbreaks, which are likely.

“We are very much in the first wave — worldwide, the nation and the state,” Moore said. “Nobody has immunity to this and everyone is susceptible. It’s possible that we’ll have additional waves.”

COVID-19, Environment

Polluters get a pass from EPA during pandemic

Andrew Wheeler, EPA photo by Eric Vance

Under pressure from industry, the EPA announced yesterday that it will not fine polluters who violate the law by failing to monitor their emissions and discharges during the COVID-19 pandemic. The policy suspending civil penalties is temporary, said EPA Administrator Andrew Wheeler in a press release. It is retroactive to March 13.

The range of industries eligible for this temporary pass is vast, including many that operate in North Carolina, such as electric utilities, plastics and textile manufacturers, asphalt plants, and waste incinerators.

The EPA’s order states that “in general the agency does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the E.P.A. agrees that Covid-19 was the cause of the noncompliance and the entity provides supporting documentation to the E.P.A. upon request.”

According to the EPA’s press release, the agency expects regulated facilities to comply with the law, “where reasonably practicable, “and to return to compliance “as quickly as possible.”

Neither of those terms is defined in the policy announcement.

To skirt the penalties, facilities must “document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.”

“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” Wheeler wrote. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

The agency said public water systems should continue to operate normally, including routine sampling, “to continue to ensure the safety of our drinking water supplies.” Public water suppliers are required to regularly monitor for some contaminants, such as lead, copper and disinfection byproducts, that latter of which have been linked to cancer. These utilities must report results to both federal and state authorities.

The policy does not provide exempt polluters that intentionally violate the law, Wheeler wrote. Nor does the policy apply to pesticide imports, enforcement of Superfund sites or the disposal of regulated hazardous waste.

In its response to the pandemic, the EPA has been inconsistent in its leniency, particularly for public comment. Chris Frey is an NC State University environmental engineer professor who served on the agency’s Science Advisory Board from 2012 to 2018. He noted on Twitter that the EPA has refused to extend its 30-day public comment deadline on a controversial rule to limit the use of human health data in its environmental decisions.

Scientists and public health advocates have pleaded with the agency to extend the comment period, but the EPA has refused to do so.

COVID-19, Environment

Here’s another unexpected fallout from COVID-19: More trash, recyclables and tighter restrictions on disposal

The broken coffee pot. The mound of take-out containers. The lawn chair with the missing leg.

As more North Carolinians are forced to stay at home to prevent the spread of COVID-19, they are also generating more household trash and recycling. But some cities and counties are changing or suspending some types of disposal services, particularly at convenience centers.

The City of Durham  has closed its convenience center on Club Boulevard, which accepts trash, recyclables, e-waste, appliances, tires, textiles and household hazardous waste, to the public, except for large commercial accounts.

Curbside collection for trash, yard waste and bulky items are not affected by the closure.

However, the city has implemented a change to cardboard collection. Because of COVID-19 and guidance from the National Institutes of Health, Durham city residents can no longer request pick-up of large amounts of cardboard, known as “special call-in” service. All cardboard must fit inside the blue recycling bins.

The new coronavirus “is stable” on cardboard for up to 24 hours, according to an article in the New England Journal of Medicine. Although the Centers for Disease Control and Prevention has stated “there is likely very low risk of spread from products or packaging that are shipped over a period of days or weeks at ambient temperatures,” it is possible that cardboard recently left at the curb could transmit the disease. Sanitation workers would have to pick up that material since it is not in a bin.

Meanwhile, Durham County has temporarily suspended bulky item disposal at its four convenience centers: Redwood, Parkwood, Rougemont and Bahama. The centers are used by residents who live in unincorporated parts of the county.

Bulky loads include large unbagged items such as furniture, debris from do-it-yourself projects, broken appliances, large toys, etc. Residents with bulky loads are encouraged to seek a private transfer station to dispose of items, according to a Durham County press release.

Durham County is reporting significant increases in waste at it convenience sites because “greater numbers of people are at home” to reduce the spread of COVID-19. “This is especially challenging as options to unload full dumpsters for the department are being reduced,” the county wrote in the release.

Durham ships its trash 90 miles to the Sampson County Landfill. This does not include hazardous waste, which must be deposited in a special landfill and is transferred out of state.

Durham County officials did not return an email seeking further information, such as tonnage.

Wake County solid waste officials have noticed more customers at the convenience centers, “possibly because people are home and doing their spring cleaning,” said John Hamlin, Wake County communications consultant. These centers  are at the South Wake Landfill and East Wake Transfer Station. The March tonnage figures won’t be available until early April, Hamlin said.

In addition, solid waste workers are staying 6 feet away from one another and are disinfecting surfaces to prevent the spread of COVID-19.  Residents should expect delays when dumping construction waste at Convenience Centers on the weekends, Hamlin said, because the county is “prioritizing household waste and recycling.” Updates are at posted on the county’s website.

The City of Raleigh has not received significantly more trash, but beginning Saturday, April 4, it will temporarily suspend collection of e-waste, yard waste, bulk items and other special load services, said city’s spokeswoman Julia Milstead, “so we can focus resources on garbage and maintaining public health and safety.”

There has been roughly a 10 percent increase in Greensboro, but no changes in service, according to solid waste officials. That city’s garbage is trucked to the Uwharrie Environmental Landfill in Mt. Gilead, about 70 miles south.

COVID-19, Legislature

New legislative committee focuses on COVID-19 pandemic

House Speaker Tim Moore

House Speaker Tim Moore has appointed 44 Republicans and 29 Democrats to the House Select Committee on COVID-19. It includes smaller working groups for economic support, health care, education, and continuity of state operations, such as emergency services, elections and public safety.

The full committee and working groups will primarily work remotely, such as by telephone or video conferencing, and “minimize gatherings of staff and members.”

“The health and safety of members, staff and the public shall be prioritized, Rep. Moore wrote in a document creating the select committee.

The select committee will study and if necessary, introduce legislation to address the “anticipated economic impacts,” including job loss, reduced consumer spending, and health care resources and response. Measures could include “economic and regulatory relief.”

The committee has not scheduled a meeting, but people can sign up for committee notices by email.