Atlantic Coast Pipeline opponents file civil rights complaint vs. DEQ

Hundreds of people turned out in Rocky Mount last summer to comment on the water quality and riparian buffer impacts of the Atlantic Coast Pipeline. (File photo: Lisa Sorg)

This post has been updated with a comment from the NC Department of Environmental Quality.

Thirteen environmental justice groups and their affiliates allege the state Department of Environmental Quality discriminated against communities of color when it approved permits for the Atlantic Coast Pipeline.

The organizations, including Clean Water for North Carolina, the Blue Ridge Environmental Defense League, NC WARN, and many of the groups’ chapters, filed the Title VI civil rights complaint today against DEQ with the Environmental Protection Agency.

Title VI complaints can be filed only against entities that receive federal funding.

DEQ could not be immediately reached for comment.

Update: 1:40 p.m.: DEQ spokesperson Megan Thorpe issued a statement, saying the agency “conducted extensive public outreach in communities along the ACP route. The public input we received allowed us to strengthen our decisions within the scope of our authority.”

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State Sen. Danny Britt to Malec Brothers: I stand by my community to protect them from methyl bromide

Sen. Danny Britt Jr. of Columbus and Robeson counties: Opposes the proposed log fumigation project, at least for now. (Photo: General Assembly)

If Sen. Danny Britt Jr. didn’t have a cousin who lives near a proposed log fumigation facility in Delco, he might have never heard of Malec Brothers or methyl bromide or a proposed log fumigation operation that would release 100 to 140 tons of highly toxic chemical into the air each year.

But families talk, and one of Britt’s cousins told the senator about the controversial project after attending a raucous public hearing on May 3.

And now Britt, a Republican representing Columbus and Robeson counties, has written a letter to the company opposing the project.

In a letter dated May 11, Britt told  David Smith, head of procurement for Malec Brothers, that he has received calls, emails and Facebook messages from constituents about the proposal. “My people are very upset, as well as myself,” Britt wrote.

A Delco resident posted Britt’s letter, written on General Assembly letterhead, on a public Facebook page devoted to the community’s opposition to the fumigation proposal.

“Until I have further information and know more about this initiative,” Britt wrote, “it is my desire that Malec Brothers not be granted a permit from DEQ.”

Britt had not heard about the proposed project until May 4, the day after the first public hearing. No one from the company contacted him, Britt wrote, nor did any Columbus County officials, Department of Environmental Quality staff or any advocacy groups “in support or against” the project.

Both the Columbus County planning board and the Board of Adjustment voted in January to approve zoning for the project. According to planning board minutes, no one from the public spoke for or against the facility. However, these meetings are held monthly in Whiteville, 28 miles from Delco, and often deal in arcane government business.

Announcements of DEQ public hearings and comment periods are posted under “news” on the agency’s website, but they are not prominently featured. By law, the agency must also post announcements in an area’s paper of record — usually in the legal notices of the classifieds section.

DEQ is continuing the original public hearing on Tuesday, May 15, at East Columbus High School gym, 32 Gator Lane, Lake Waccamaw. An information session begins at 6 p.m., followed by the hearing at 7 p.m. The agency has extended the public comment period a second time to May 18.


Chemours responds to DEQ with promises of new technology sandwiched with a veiled threat to leave North Carolina

Map of contamination route from Chemours Outfalls to groundwater and the Cape Fear River (Illustration courtesy Southern Environmental Law Center)

This is the second of a two-part story about Chemours. Read an earlier piece, posted this morning, about a 2013 accident that injured 11 workers.

Chemours had nearly three weeks to answer to demands from state environmental officials. But not until April 27, mere minutes from the deadline, did the company send its 30-page response and more than 950 pages of attachments, thwarting significant sanctions that could have hampered the Fayetteville plant’s operations.

Chemours’s response and supporting doucments were made public this week by state environmental regulators who cautioned that the company’s filing is still under review.

In its response, Chemours said it plans to install regenerative thermal oxidizer in late 2019 or early 2020 that would reduce GenX emissions in the air by 99 percent. The cost of installing the technology is approximately $100 million, which, Chemours wrote, “is to demonstrate its commitment to operate the facility in North Carolina and to resolve community concerns.”

However, $100 million is a comparatively small amount for a company that reported $1.7 billion in net sales in just the first quarter of this year. Its fluoroproducts unit alone — which includes GenX-containing materials — is responsible for more than $725 million of those sales.

The subtext of this statement is that Chemours could withdraw from North Carolina if it feels regulations become too onerous. If Chemours left the state, it would cost Bladen County about a million dollars in tax revenue, plus jobs: 400 to 450 people from there and surrounding counties work at the Fayetteville Works plant.

Materials produced at Fayetteville Works, including GenX, are critical to state, national economy Click To Tweet

“The materials produced at Fayetteville Works, including GenX, are critical to the state’s and nation’s economy,” the response read. “Fluoropolymers are also key components of consumer electronics, semi-conductors, and life-saving medical equipment.”

If Chemours were to shut down it production, the company said, several industries, including the automobile, aerospace and the military, would be forced to buy products “from China or other foreign nations.”

There is a contingent of economic development leaders and employees who want to keep Chemours in Bladen County. However, a growing number of people in the company’s pollutant path are exasperated with both the company’s actions and state environmental regulators’ lack of meaningful action.

DAQ issued a 60-day notice of intent to modify the Chemours air quality permit, one of many citations it has sent to the company. (The department has yet to levy a fine.)  In the notice, DAQ required Chemours to show it was complying with all lawful requirements of the current terms of its permit. The notice also required that Chemours respond in writing by April 27 and demonstrate to the “division’s satisfaction: that emissions of GenX compounds from the Fayetteville Works plant  do not and will not cause or contribute to violations of the groundwater rules — under any circumstances.

Had the company failed to meet the deadline, DAQ could have revised its permit to prohibit the release of any fluorinated compounds. Since Chemours relies on these chemicals in its manufacturing, the permit would have forced the company to shut down most of its operations, at least temporarily.

The company countered that it believes DAQ does not have the power to modify the permit; to try to do so, Chemours said, it “improper and arbitrary.” For one, there is no “public health emergency,” Chemours wrote. Nor did the permit in 2016 limit or mention GenX. Moreover, Chemours claimed that a “zero-emission standard” tied to a groundwater standard of 10 parts per trillion is impossible to achieve. DAQ has not required such a rigorous standard for any other company or chemical, Chemours said. However, no other company in North Carolina is known to emit GenX.

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agriculture, Courts & the Law, Environment

Federal judge reduces damages in hog nuisance case — far below the total of $50 million

Hogs stand in feces and urine inside a barn at Kinlaw Farms in Bladen County. Last month, a federal jury awarded 10 neighbors of the farm a total of more than $50 million in damages against Murphy-Brown. A federal judge today reduced the total damages to $3.25 million. (Photos from court exhibits)

The 10 winning plaintiffs in a hog nuisance lawsuit won’t receive their $50 million in punitive damages  — $5 million each — against Murphy-Brown, as awarded by a jury. Instead, the total amount has been reduced to $2.5 million, just $250,000 apiece, according to a ruling handed down today by US District Court Judge Earl Britt.

Including compensatory damages for harm to their quality of life, the plaintiffs will each receive $325,000.

The first of dozens of hog nuisance lawsuits went to trial in federal court in April. After three weeks’ of proceedings, the jury ruled in favor of 10 Bladen County residents who live within a mile of Kinlaw Farms. The farm raises 15,000 hogs that are owned by Murphy-Brown, the world’s largest pork producer.

The jury had awarded each plaintiffs $75,000 in compensatory damages and $5 million in punitive damages. Punitive damages are awarded when a jury determines a defendant, in this case, Murphy-Brown, committed fraud, or acted with malice or engaged in willful or wanton conduct.”

Whether the plaintiffs would receive the full and historic amount was in doubt almost immediately after the award was announced.

Murphy-Brown attorneys with McGuireWoods appealed the amount, based on a state law and subsequent Supreme Court case that limits punitive damages to “no more than three times  the amount of compensatory damages or $250,000 whichever is greater.”

The law capping punitive damages, passed in 1995 by the NC legislators, received wide support from the influential hog industry.

Attorneys at Wallace & Graham, who represented the plaintiffs, argued that a limitation on the amount of punitive damages is “unconstitutional as applied.” Specifically, they argued that in this case for private nuisance, the statute violates their right to a jury trial.

US District Court Judge Earl Britt agreed with the defendants.

Some states have ruled punitive damage caps as unconstitutional, but not North Carolina, Michelle Nowlin, an expert in agricultural and food law, told Policy Watch after the jury’s decision. And in other states, judges can uphold the jury’s award, as long as he or she determines the award is not “excessive.” In North Carolina, though, the judge does not have this discretion. Nor can juries be instructed about damage limitations before weighing their decision.

Murphy-Brown attorneys have said they also plan to take the case to the Fourth Circuit of Appeals.

The second hog nuisance trial begins with jury selection on Tuesday, May 29, in US District Court in Raleigh.





A chaotic night in Delco: Angry opposition to fumigation plant, company reps shouted down, DEQ fumbles, and a mystery call to the fire marshal


More than 300 people eventually filed into the Acme-Delco Middle School Cafeteria. The Columbus County fire marshal ordered the meeting shut down — it reconvened in the gym — because the crowd had exceeded legal capacity. Because of overwhelming community interest, DEQ plans to hold a second public hearing in Delco. (Photos by Lisa Sorg)

This post has been updated with information from the Columbus County fire marshal.

At 6:30 last night, the cafeteria at Acme-Delco Middle School in Columbus County was nearly empty. By 7, every chair was filled. The crowd — young mothers, fathers, babies, children, men on canes, a woman on portable oxygen and another  in a wheelchair, loggers, retired DuPont workers, veterans, scientists, preachers, doctors — they all kept streaming in until the room could hold no more.

They had assembled to speak and listen at a state environmental hearing on proposed log fumigation facility, operated by Malec Brothers Transport of Australia, that would emit as much as 140 tons of highly toxic methyl bromide into the air each year. The logs, timbered by a Dutch company, would then be shipped to China.

Methyl bromide has been banned or phased out in many countries for most uses because it depletes the ozone layer and harms human health. Health studies have shown that long-term, low-level exposure to methyl bromide can harm children’s neurological development and possibly can contribute to motor-neuron diseases, such as ALS, in adults.

Malec Brothers Transport handed out free company caps. The hat reads “Proudly Supporting Columbus County”.

Despite the proven risks, Malec Brothers would install no “control technology” — nothing to scrub the emissions. Instead it would rely on “operational controls” — venting the shipping containers where the logs are gassed via a 30-foot stack, which would allow the emissions to float away and elude the monitors along the property boundary.

And if methyl bromide levels exceed 1 part per million near the containers, according to the air permit application, workers will use “sandbags and duct tape” to seal off the leak.

The saga that unfolded over the next two and a half hours demonstrated that the Malec Brothers, at best, is tone deaf about the community that would bear the burden of its pollution. (No, not even free baseball caps appeased residents.) And at worst, the company views — inaccurately — Delco as a backwater of naive country folks who, once hypnotized by dollar bills, would offer roll over and offer little resistance.

DEQ had grossly underestimated community interest Click To Tweet

And in its mishandling of the meeting, the Department of Environmental Quality showed it had failed to adequately inform the public of what was at stake. Nor in the permit review had the Division of Air Quality done any modeling to test the veracity of the company’s claims. And DEQ had grossly underestimated community interest — midway through, the meeting was temporarily canceled by order of the fire marshal.

Instead, the agency had engaged only in a box-ticking exercise of obscure public notices, and at the meeting, delivered a jargon-laden reading of indecipherable permit conditions.

The meeting went downhill from there.

“I escaped Agent Orange,” one resident, a Vietnam veteran, said. “I was a crane operator in 9/11. I’ll be damned if I have to escape this. If it’s safe, let them put it where they live. No job is worth that.”

If it's safe, let them put it where they live. No job is worth that Click To Tweet

Alex Williams lives a half-mile from the proposed facility, on Fertilizer Road. He worked at Riegel Paper and DuPont, as well as in the Port of Wilmington, where he handled shipping containers and fumigation. “Three years ago I was diagnosed with bladder cancer,” Williams said. “The doctor told me it was because I was exposed to chemicals.”

Malec Brothers Transport used a worker to try to calm the crowd, which was on edge.

“I’ve been exposed to these chemicals for 15 years,” said Bryce Sage, a white 30-something with tattooed forearms. “I’ve had no harm yet.”

You can’t tell! 
You’re in the wrong place, buddy.
Wait til you’re 60!

Malec Brothers Transport Director of Procurement David Smith: “We have a good neighbor policy.”

Next, Malec Brothers trotted out company’s director of procurement, David Smith, to try to reassure people that its log fumigation facility, which would emit as much as 140 tons of highly toxic methyl bromide into the air, would be safe.

“We do this in Australia. We care. We have a good neighbor policy.”

Crowd, now incensed, collectively groaned.

And besides, he added, “The range of pay is fifteen to twenty-two dollars an hour. This county needs jobs. The average pay here is only five dollars an hour.”

A chorus of boos and jeers.
Take your money!

Smith looked at the table of DEQ officials, his eyes filled with the fear of a cornered rabbit. He left the microphone before his allotted two minutes had expired.

And finally, the company brought out a third worker, who was Black, to vouch for its benevolence.

“I trust the process,” the worker said of using methyl bromide to gas the logs. “I wouldn’t bring harm to anyone.  I couldn’t get a job at International Paper, West Frasier. Malec Brothers gave me a chance.”

Crowd continued yelling.

Speaker No. 16, Gary Lanier, planning director for Columbus County and the head of its economic development commission — potentially a conflict of interest — was the final supporter. “They have followed the rules”  in the zoning application, Smith said. “We’re always looking for more jobs.”

Before the crowd could finish booing, the fire marshal, stationed nearly 30 miles away in Whiteville, shut it down. More than 300 people were in room that had a legal capacity of 192. “We’re canceling the meeting and will reschedule it,” announced DEQ Communications Director Megan Thorpe. Two sheriff’s deputies stepped forward.

The sun had not yet set.

Hold the meeting outside!

Updated information:  Acme-Delco Middle School Principal Kevin Toman later told me that the fire marshal’s office — 30 miles away in Whiteville — called him and told him he had to clear the room. Fire Marshal Shannon Blackman told Policy Watch Friday afternoon that he received “several calls,” one of them from the school’s head of maintenance.

“He told me it was standing-room only, that people were cussing, upset,” Blackman said. “That’s not a good mix. I told him that the room had to either go below capacity or be canceled and rescheduled for a different location.”

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