A double whammy: Dams that are high hazard and in poor condition

While Hurricane Florence could endanger animal waste lagoons, hazardous waste sites and other toxic repositories, there is another potential hazard to consider: Weak dams Of the 3,000 dams statewide, 1,447 are designated as “high hazard” in the NC Department of Environmental Quality’s inventory. If the structure were to fail, there is a substantial risk of harm to people and property.

By state law, owners of dams designated high or intermediate are required to file with DEQ an emergency action plan, known for short as an EAP, although as the database shows, many of them don’t. High-hazard dams are also supposed to be inspected every two years, while intermediate- and low-hazard dams are on a five-year cycle.

Of these high hazard dams, 126 are also listed in poor condition — signified in red in the map above. Some of these dams are government- or corporate-owned but most are private: Homeowners’ associations, individuals, trusts.

The track of Hurricane Florence has moved south as of Wednesday. The storm is enormous, though, and effects will likely be felt well outside the storm’s path. (Map: National Hurricane Center)

You can zoom in on the map and click on a symbol to see the dam’s owner, the nearest town, the river basin and other information. If a dam is listed as “breached” in this database, it has been intentionally dismantled. This happened in 2017 with the privately owned Woodlake Dam in Moore County, which was in such bad condition the state took it over and breached the dam in order to drain the lake.

Of the 590 intermediate hazard dams 26 are listed in poor condition, symbolized by the purple markers below.

Courts & the Law, Education, Environment

Lawsuit tries to muzzle opponents of Durham charter school in environmentally sensitive watershed

Discovery Charter School would be built on 58 acres over three parcels: 501, 505 and 717 Orange Factory Road. Many neighbors oppose the siting because of the school’s proximity to the Little River, a drinking water source for Durham.

Note: This is one of two legal cases involving the siting of Discovery Charter School. A summary of the second case will be posted tomorrow.

A major developer of charter schools, Steve Hubrich claims he’s only trying to protect his reputation. But the president of Hubrich Contracting has filed what appears to be a SLAPP suit against opponents of one of his projects, Discovery Charter School, in northern Durham County.

SLAPP suits, short for Strategic Lawsuit Against Public Participation, are often used by companies and government agencies to silence their critics under the guise of defamation claims. The plaintiffs don’t want to win a judgment; their claims are often flimsy. Instead, plaintiffs want to intimidate their opponents and rack up their attorney’s fees, with the goal of making the critics and their criticisms go away.

Hubrich’s claims, according to court records, match the characteristics of these intimidatory tactics. The allegations could be refuted — and are, according to court records. Yet with a $25,000 judgment on the line — and a request for a jury trial, which would likely require the defense to hire an attorney — Hubrich could effectively muzzle his opponents.

Anti-SLAPP suit attorneys Peter Kurdock and Mark Goldowitz of the Public Participation Project wrote on their website that SLAPPs aren’t just random meritless lawsuits. They are lawsuits that directly attack First Amendment rights.”

Making matters worse, North Carolina does not have an anti-SLAPP law. About half of the states do.

With an estimated 500 students, Discovery Charter School is scheduled to open as a middle school next fall and would be built in an environmentally sensitive watershed near the Little River in northern Durham County. To build the school in this rural and agricultural area, Hubrich was required to get a minor Special Use Permit from the county’s Board of Adjustment, a quasi-judicial body.

For more than a year, several neighbors along rural Orange Factory Road have fought the project and spoken against it at public hearings. They say the school, whose property would consume nearly 58 acres, would fracture wildlife habitats, jeopardize the quality of the Little River — a drinking water source for Durham — plus add onerous traffic of an extra 500 trips a day to a two-lane, officially designated NC Scenic Byway.

“The purpose of the website was to rally public opposition to the application for a minor Special Use Permit and called for people to attend a county Board of Adjustment hearing,” Hubrich complained, according to court documents.

Yet Hubrich’s main allegation was that someone had posted a false statement on the website insinuating that he planned to move several graves on the property, including “a baby’s” from a “slave cemetery” into one common grave.

The website text in question (upper right) from a court filing in the defamation suit.

Hubrich said in court documents that his contracting agent had found several depressions on the property believed to be unmarked grave sites. The agent then contacted the state Department of Archeology as required, Hubrich said, and the site had not been disturbed. Hubrich did say that state law allows him to combine these graves into one common site.

Hubrich, who has been in business for 24 years, claimed the opponents’ statements “harmed his reputation” as he was building “relationships with educators.” That relationship, though, seems to be on firm ground: Hubrich’s firm has built at least 11 charter schools, including Voyager Academy in Durham, and a Duke University call center.

Project opponents allegedly knew their statement was false, Hubrich contended, and had “malicious intent to injure the plaintiff’s reputation and business and to shift public sentiment against the project.”

But a strict reading of the web page in question, included in the court file, shows Hubrich’s account is a stretch. It doesn’t state a grave was moved, but rather, that the stones were moved. Nor does it say Hubrich moved the stones. The only mention of Hubrich is that he “acknowledged [the graves] and that it would be within its right to place them within one grave with a marker.” Then the word: “Disgusting.”

Initially in June, Hubrich and his attorneys with the Morningstar Law Group filed the defamation suit against “John Doe.” Then in July, Hubrich named his alleged antagonist — Marie Mahoney, of 817 Orange Factory Road. He then petitioned the court to take a deposition from her husband, Patrick, whose photo appeared on the website (he was holding a baby deer who reportedly had tried to cross the road) to try to prove it.

Marie Mahoney could not be reached for comment. However, Patrick Mahoney sent a letter to the court asking not to be deposed because Hubrich’s allegations were false. Durham County Superior Court Judge Orlando Hudson denied Mahoney’s request. As of Aug. 28, Hubrich’s attorneys can depose Patrick Mahoney “and other non parties … for the purpose of investigating the defendant’s identity.”

Meanwhile, Hubrich has started his own counter-website: orangefactoryroad.com.


Smithfield says expansion of Tar Heel facility behind closure of company’s Clayton plant

Smithfield ham (Photo: Amazon)

More than 100 Smithfield workers will lose their jobs at the company’s distribution center in Clayton, but an expansion of the Tar Heel plant, not ongoing nuisance lawsuits, are behind the facility’s closure.

Dennis Organ, senior vice president of supply chain and direct store delivery, issued a statement yesterday noting that the company has invested $100 million to expand the plant in Tar Heel, and 250 positions will be added as a result of the expansion.

Clayton employees will be offered positions at the Tar Heel operation and elsewhere, according to a company statement.

It’s unclear how many workers will transfer to Tar Heel, which is 80 miles south of Clayton.

Smithfield’s packaged meats division increased its profit this year — nearly 11 percent. But according to an August report to investors, WH Group, Smithfield’s China-based parent corporation noted that President Trump’s tariffs had dented profits in the US fresh pork segment. “Profits declined significantly due to an overabundant supply of meat in the market and trade tensions,” the report read.

Operating profit decreased by 3.8 percent in the US to $867 million, which the company attributed to inflation in wages and logistical costs.





agriculture, Courts & the Law, Environment

Appellate court ruling could funnel Smithfield agreement funds away from environmental protection

L-R Appellate Court Judges John Tyson, Phil Berger Jr, and Wanda Bryant (Photos: NC Court of Appeals)











Smithfield's payments weren't penalties, but voluntary contributions to burnish its image by working toward better waste management solutions Click To TweetFrancis X. De Luca can’t sue the state of North Carolina over an 18-year-old Smithfield agreement, the NC Court of Appeals ruled yesterday, but the former head of the conservative think tank nonetheless might have achieved his goal: To use the state constitution to siphon future settlement money away from environmental projects and toward public schools.

In a 2-1 decision, the appellate court ruled that there are legitimate questions about whether Smithfield’s annual payments constitute penalties for past bad behavior or voluntary contributions to help the environment.

Penalties go to a fund that then is disbursed to public schools. Voluntary payments can fund other projects.

De Luca and the New Hanover County Board of Education were the plaintiffs, but the court ruled De Luca does not have legal standing to sue. The decision, though, also sends the case and its core constitutional questions back to Wake County Superior Court for a new trial.

Judges John Tyson and Phil Berger Jr., were in the majority; Judge Wanda Bryant dissented.

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. 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 agreement, Smithfield pays $1 per hog it owns in North Carolina each year, up to $2 million annually. The agreement is valid through 2025. 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.” (Smithfield has not made any meaningful progress toward those solutions. That issue is central to the hog nuisance lawsuits being heard in federal district court.)

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Alamance County Commissioners give a big thumbs down to Mountain Valley Pipeline Southgate

Top Row (L-R): Commissioner Bob Byrd, Commissioner Tim Sutton Bottom Row (L-R): Vice Chairman Bill Lashley, Chair Amy Scott Galey, Commissioner Eddie Boswell (Photo: Alamance County government)


Alamance County Commissioners unanimously voted this morning to approve a resolution opposing the MVP Southgate, a controversial natural gas pipeline project planned for northwest-central North Carolina. MVP Southgate would enter Alamance from Rockingham County, then run diagonally from the northwest corner and continuing near Graham and Haw River.

Like many landowners and environmental advocates, the commissioners said they were concerned about the potential harm to the Haw River, which the pipeline would cross twice, drinking water, erosion, public safety and property values.

MVP Southgate is owned by a consortium of energy companies, including Dominion Energy — a major stakeholder in the Atlantic Coast Pipeline. (In typical convoluted corporate fashion, Dominion is buying a stake in an energy company SCANA, a subsidiary of PSNC, which is a co-owner of the MVP.) The southern extension would begin in Chatham, Va. and enter North Carolina near Eden.

The Commissioners are sending the resolution to the Federal Energy Regulatory Commission today.


“Alamance County’s unanimous stand against the proposed MVP extension is the latest evidence that the tide is turning against these dirty, dangerous fracked gas pipelines,” said the Sierra Club’s Joan Walker. “People across the country realize these projects threaten our air, water, climate, and communities, and they don’t want to shoulder all the risks while corporate polluters reap the rewards. We applaud the Alamance County Commission for standing up for their constituents’ clean water.”

Haw Riverkeeper Emily Sutton said she is pleased with the commissioners’ decision. “The Haw River has experienced enough environmental degradation from industries that exploit the health of the river and the communities that depend on it. This proposed fracked gas pipeline is not needed for economic growth in this county or the state. We are thankful the Alamance County Commissioners understand how vital the river is to the community and how MVP LLC aims to make high profits for investors at the expense of our environment and communities. We hope the Governor and our state agencies follow suit.”

Here is the text of the resolution:




1-WHEREAS, Alamance County is a cohesive community with a thriving economy that balances respect for our rural history with thoughtful growth and development; and

2- WHEREAS, Alamance County, a political subdivision of the State of North Carolina, through its Board of County Commissioners encourages the Federal Energy Regulatory Commission to take notice of the following found by the Board when deliberating the issuance of a permit for the construction of the Mountain Valley Pipeline Southgate; and

3- WHEREAS, Alamance County has adopted a Strategic Plan with a Smart Growth and Development Pillar encouraging planned growth to strike a balance between the need for reliable sources of dependable affordable energy to support business, industry and residences with the needs of our citizens, an appreciation of natural and agricultural resources and exceptional efforts continue to preserve the Haw River as a source of water and recreation; and

4-WHEREAS, Alamance County has adopted a Mission Statement as follows: ”County Mission: Alamance County effectively provides its citizens with high quality public services, the tools for successful economic development, and a responsive, transparent government that supports the community as the preferred place to live, work, and play;” and

5-WHEREAS, the Mountain Valley Pipeline (MVP) LLC announced plans in April 2018 to extend the 303 mile proposed Mountain Valley Pipeline from its currently planned end point in Pittsylvania County, Virginia, 72 additional miles, the last 20 miles of which are proposed to pass through Alamance County, North Carolina, creating “MVP Southgate” and on May 3, 2018 submitted its pre-filing request to the FERC which was formally accepted by the FREC on May 15, 2018; and Read more