agriculture, Environment

DEQ lists progress on environmental justice, swine farms; critics say enforcement essential

Map: DEQ

After initial results showed elevated levels of contaminants in Duplin County waterways commonly found at industrialized swine farms, the NC Department of Environmental Quality is continuing its water quality investigation to find the source.

Policy Watch previously reported that in the Stockinghead Creek watershed — with 40 industrialized hog farms permitted to grow 94,068 swine, another 1.3 million chickens and turkeys, plus cattle —contained fecal coliform levels well above state regulations.

High levels of nitrogen, phosphorus and ammonia were also detected, but there are no state or federal numeric standards for nitrogen, phosphorus and ammonia in surface water.

DEQ is working with academic researchers to identify genetic markers for feces, as well as molecular tracers for the sources of nitrogen.

The investigation is part of a civil rights settlement that went into effect in May 2018. Under the terms of the agreement, DEQ agreed to improve regulatory oversight and better protect neighboring communities form the health and environmental impacts of industrialized swine farms.

As a condition of the settlement, DEQ was also required to submit a report about its progress on fulfilling its environmental justice obligations.

The EPA has identified potential health hazards related to CAFOS, although it has said there is significant uncertainty associated with levels of exposure. Academic scientists have also found that residents of zip codes where there is a high density of CAFOS had shorter lifespans, although the researchers stopped short of establishing causality.

Naeema Muhammad, organizing director of the NC Environmental Justice Network, also sits on the state’s Environmental Justice and Equity Advisory Board. “While the improvements to the swine general permit are welcome and necessary, they still do not meaningfully address the equity issues that are at the center of the [civil rights] complaint, Muhammad said in a prepared statement.

“No matter how strong DEQ’s regulations or oversight,” Muhammad said, the open lagoon and sprayfield system —  causes a substantial part of the adverse effects on the health, well-being and environment of people living near operations covered by the General Permit. It must be replaced by the superior technologies that meet the 2007 statutory performance standards, which also apply to digesters and swine waste biogas projects.”

This month the agency also released a draft of a violation point system that can be used to better gauge farms’ compliance. Points are assigned based on negligence, willfulness and the danger posed by the violation. If a farm accumulates six points within a rolling five-year period, DEQ could revoke its permit.

DEQ also issued the first version of an anonymous complaint tool.  DEQ has begun publicly listing the number of odor complaints it receives, as well as the farms where inspectors determined there was a violation.

By allowing complaints to remain anonymous, people could feel more secure in reporting without fear of retaliation from the farmers. Several neighbors have said that farmers have tried to intimidate them, including one person who testified in a deposition that one farmer entered her mother’s home and shook the chair she was seated in and threatened her.

From November 2018 to April 2019, DEQ confirmed 62 complaints involving cattle, dairy, poultry and swine farms. (Most poultry farms aren’t required to have a permit because they use “dry” litter. However, these farms can still stink.) Inspectors issued warning letters, notices of deficiency and notices of violation related to the complaints. Farms are also provided with an “odor control checklist.”

“As an agency, we continue to be responsive to complaints, conducting inspections and taking enforcement actions when it is appropriate to do so,” Martin said.

For the latest reporting period, May 2019 through March 2020, DEQ investigators confirmed eight of 85 complaints. Six of them dealt with illegal discharges into waterways; two involved spraying waste on fields within four hours of a flood watch. The violators were issued with warnings, notices of deficiency or notices of violation, depending on the egregiousness of the offense.

For example, inspectors found a Duplin County swine farm co-owned by Terry Tate and AJ Linton was illegally discharging waste into Murphey’s Creek — a waterway in the Stockinghead Creek watershed that has high levels of pollution.

Roughly half of the recent cases dealt with hog farms or a combination of livestock operations — hog and poultry, for example, on the same property. Since lawmakers made the moratorium on new and expanded hog operations permanent in 2007, thousands of poultry farms have been built in the state; most poultry operations are “deemed permitted,” meaning they don’t need a permit.

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agriculture, Environment

Farm Bureau wins Round 1 versus DEQ over swine farm requirements

This is a developing story and will updated.

The North Carolina Farm Bureau has temporarily prevailed in a contested case hearing against the NC Department of Environmental Quality over three issues related to industrialized hog farms.

Administrative Law Judge Donald Overby on Friday placed a temporary stay on requirements that were included in general swine permits: groundwater monitoring, annual reporting, and phosphorus loss tests.

Overby didn’t rule on the necessity of these requirements, only on whether DEQ was legally allowed to include them in the general permits.

The Farm Bureau had claimed that DEQ had overstepped its authority to incorporate these requirements into its general swine permits, which were to go into effect last October. However, because of the contested case hearing, the changes, which strengthen some aspects of CAFO operations, have not been implemented.

Overby ruled that the law requires DEQ to go through rule-making on these three provisions rather than unilaterally inserting them into the permit. The Environmental Management Commission is in charge of rule-making for DEQ; it can take 18 months to two years for the rules to be drafted, debated, submitted for public comment and finalized.

General swine permits cover most of the concentrated animal feeding operations in North Carolina; they are used to cover a class of operations, rather than individual permits. General swine permits are up for re-adoption every five years.

Several of the new provisions in the general swine permits came about because of a settlement agreement between civil rights groups and DEQ. The groups had filed a complaint with the EPA against the agency in 2014 over the disproportionate effect of swine CAFOS on communities of color. The EPA agreed that the complaint had merit, and in 2018, DEQ and the groups reached an agreement.

During the public hearings on the general permits, the Farm Bureau, Pork Council and many contract growers for major hog producers Smithfield and Prestage argued that the permit requirements for groundwater monitoring, annual reporting and phosphorus testing were onerous or redundant.

However, groundwater monitoring is important because runoff or leakage from enormous hog waste lagoons can seep below the surface and into neighboring private drinking water wells or rivers and streams. Annual reporting, DEQ and civil rights groups say, more closely monitor waste management and environmental issues that these farms can pose. DEQ required phosphorus loss tests because they can indicate erosion or runoff from the farms, which in turn can create harmful algae blooms in waterways.

The NC Environmental Justice Network and the state. NAACP had tried to get the court’s approval to intervene in this case but were denied last year. They could appeal the judge’s decision. Overby has not ruled on the entire case; a hearing is scheduled for July 28.

 

agriculture, COVID-19

First farmworker tests positive for COVID-19, is in isolation; advocates fear outbreak

This is a developing story.

A farmworker in eastern North Carolina is the first confirmed case of COVID-19, according to advocacy groups.

The worker’s county has not been officially disclosed because of medical privacy laws, but Lior Vered, policy advocate for ToxicFree NC, said the case was diagnosed by the Commwell Health Clinic. The clinic is headquartered in Dunn, but has facilities throughout the eastern part of the state.

The worker is in quarantine, Vered said, and there are other suspected cases, pending test results.

Policy Watch reported last month that the North Carolina Growers Association, advocates and farmers were concerned about the potential devastating effects an outbreak could have on the workforce and the food supply.

Each year, thousands of workers enter the state on H2A visas, reserved for temporary agricultural employees from other countries. That figure doesn’t include undocumented immigrants who are also part of the workforce.

“The first H2A worker who comes down with the coronavirus could shut the program down for a year,” Lee Wicker, deputy director of the North Carolina Growers Association said at the time.“Growers are also worried that [the federal government] will shut down the border. If you can’t plant, you can’t harvest.”

The North Carolina Growers Association did not return an email seeking comment on the latest information. The group’s phone line was busy.

The NC Department of Health and Human Services directed growers to “create a plan for what to do if many workers are sick at the same time,” but provided no detailed guidance on what such a plan would entail.

DHHS could not be reached for comment.

“We need a state level response to help farmers, workers and growers,” Vered said. “The reality is, growers don’t have the means to implement the measures needed. This is no longer theoretical; it’s a practical problem.”

Social distancing, sanitation and quarantining sick workers all sound reasonable in theory, but these measures are hard to execute on a farm. Workers live in close quarters, sometimes barracks-style, and share a bathroom and kitchen. Tests are also in short supply.

“They are essential workers,” Vered said, adding that because of the communal nature of farming,”social distancing isn’t realistic.”

Leticia Zavala, vice-president of FLOC, the Farm Labor Organizing Committee, said entire crews could be sickened by the virus. Where to house the ill poses logistical problems. FEMA is supposed to allocate money to house up to 16,000 quarantined or isolated workers. “But no money has arrived yet,” Zavala said. “And there’s a lot to be worked out.”

For example, if a sick worker is housed in a hotel, it’s unclear how he or she will get meals. “Some workers are saying they were just told not come out of their room,” Zavala said.

And for the workers who are just now arriving, the days’ long bus trip from Mexico becomes more complicated when so many restaurants are either closed or drive-thru only. Even restrictions at grocery stores can affect a workers’ ability to buy cleaning and sanitizing supplies in bulk.

FLOC is taking donations for cleaning supplies to distribute to workers: Hand-washing soap, Clorox, toilet paper, hand sanitizer, handkerchiefs, masks and disinfectant wipes

Outreach staff need facemarks, gloves, anti-bacterial gel, protective equipment, thermometers and phone cards for Internet use.

Supplies can be dropped off at the FLOC office, 4354 US Hwy 117-AltS, Dudley, NC, or other locations to be arranged. Or supplies can be mailed to FLOC at PO Box 560, Dudley, NC 28333. To contact FLOC directly email flocnc@floc.com.

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.

agriculture, COVID-19

DHHS: Farmers markets can stay open, but restaurant outdoor seating is off-limits

Image: Adobe Stock

Update at 3:45 p.m.: Citing a state of emergency, Durham City officials have ordered the Durham Farmers Markets to close despite guidance from the state Department of Health and Human Services.

Farmers markets are in the same classification as groceries and can remain open, according to guidance issued by the state Department of Health and Human Services.

DHHS clarified parts of Gov. Roy Cooper’s Executive Order, which prohibits gatherings of 50 or more people and closes bars, restaurants because of the COVID-19 pandemic.

Policy Watch reported earlier this week that Durham city and county government officials had ordered all Durham Farmers Markets to temporarily close, classifying them as “events” exceeded the gathering limit. Meanwhile, the four state farmers markets remained open.

State Rep. Pricey Harrison (D-Guilford) and State Sen. Mike Woodard (D-Durham) worked with DHHS on guidance to keep markets open. Farmers markets around the state have implemented “no-sampling” policies and are working on ways to ensure they comply with the social distancing directive of keeping patrons 6 feet apart.

Outdoor seating at restaurants, though is prohibited, as indoor. Restaurants can provide take-out, delivery and drive-through services.

The text of the guidance is below.

Farmer’s Markets:

In NC, Farmers Markets fall under the same classification as grocery stores and are considered an important source of food for local communities. Farmers Markets who choose to operate during the COVID-19 outbreak are required to follow the same federal or state mandated directives as grocery stores on issues such as social distancing or crowd size (if indoor).   In addition, restaurants located at farmers markets are also subject to Executive Order No. 118.  Additional guidance regarding executive order 118 and the Secretary’s abatement order will be issued shortly.

Outdoor Seating at Restaurants:

In light of new information today regarding the presence of community spread of COVID-19 in North Carolina, local jurisdictions should enforce the more stringent Order of Abatement of Imminent Hazard issued by the Secretary of the NC Department of Health and Human Services, which states that “seating areas of restaurants and bars constitute an imminent hazard for the spread of COVID-19.” Restaurants shall close all seating areas immediately and bars are directed to close immediately. Restaurants are restricted to carry-out, drive-through, and delivery to ensure food is available while maintaining social distancing. Restaurant staff are not permitted to serve patrons indoors or in the outdoor seating area, and all areas of North Carolina are subject to mass gathering restrictions and social distancing guidelines. If a restaurant has outdoor seating, onsite consumption in the outdoor seating area is not permitted pursuant to the Order of Abatement.