agriculture, Environment

Prepare for a Texas duel as Smithfield hires new, and yes, out-of-state lawyer for upcoming hog nuisance trial

Two men argued at a Stand for Farm Families rally earlier this summer in Raleigh. The man on the left opposed factory farms, while the man on the right attended the event in support of hog farmers. (Photo: Lisa Sorg)

Over the summer, as Murphy-Brown lost three historic nuisance lawsuits in which juries penalized them more than a half-billion dollars, the hog industry and its surrogates changed tactics. If they could not win before a judge and jury, they would do so in the legislature and in the court of public opinion. At choreographed rallies, at press conferences, on the House and Senate floor, they threw red meat — or being pork, white meat — to their base to rally them against people suing industrialized swine farms for nuisance. The charge: Out-of-state trial lawyers have invaded North Carolina to ruin family farmers.

“We need to change the statutes and stop [the trial lawyers] from spreading like cancer in the country,” said US Sen. Thom Tillis at a National Agriculture Roundtable earlier this fall. One of his main campaign contributors is McGuireWoods, the firm that had been unsuccessfully defending Murphy-Brown, a Smithfield subsidiary, in the nuisance suits. “I hope we can put them out of a job.”

Now the world’s largest pork producer, Smithfield Foods has hired one of those out-of-state trial lawyers to defend it in the next hog nuisance case. Robert Thackston, a partner at Hawkins, Parnell Thackston & Young in Dallas, will square off against Michael Kaeske, the plaintiffs’ attorney, who is also from Dallas. Kaeske was hired by Salisbury firm Wallace & Graham to be the lead attorney at trial.

Jury selection is scheduled to begin Nov. 13 in US District Court in Raleigh. Judge David Faber, from the Southern District of West Virginia, will hear the case. Senior Judge Earl Britt, 86, presided over the first three cases.

A graduate of UNC law school, Thackston has represented plaintiffs, including landowners whose property was affected by a nearby nuisance, as well as defendants against those very types of claims, according the firm’s website. He has defended manufacturers who made products with ingredients like benzene, dioxin, PCBs and asbestos. (Thackston also gave a presentation, “Defending Retailers in Asbestos Litigation,” in 2003.)

Coincidentally, asbestos is how Kaekse made his name: by representing plaintiffs with mesothelioma, a fatal type of cancer caused by exposure to asbestos.

In the hog cases, McGuireWoods and Wallace & Graham, including Kaeske, spent the fall in mediation, hoping to avert the need for more trials. Those proceedings are confidential, but nonetheless, the fourth case, Gillis v. Murphy-Brown, will proceed in November. It is one more than 20 still pending before the court.

Gillis v. Murphy-Brown, which involves a farm raising 7,184 hogs in Sampson County, is different from the previous lawsuits, with potentially more at stake for the company. In all of the litigation, Murphy-Brown has been the defendant, not the individual farmer. Because the company owns the hogs and strictly dictates every aspect of farm’s operations, it is responsible for paying any punitive and compensatory damages related to odor and flies from open-pit hog lagoons and sprayfields that the juries have deemed a nuisance to the neighbors.

The individual farmers, contracted with Murphy-Brown, are penalized, but not by the jury; the company, instead of upgrading the waste systems and thus eliminating the nuisance, “depopulates” the farm. It chooses to remove the pigs and the primary source of the farmers’ livelihood. Without disclosing the nuances of these agreements, Murphy-Brown and the NC Pork Council have portrayed the lawsuits as an assault on small family farmers.

In the Gillis case, Smithfield not only owns the hogs but also the farm itself. There is no “family farmer” to shield the company from responsibility or to appear at rallies on its behalf.

 

Gillis by Lisa Sorg on Scribd

agriculture, Environment, Legislature

This Week in Pollution: PFAS in drinking water, Atlantic Coast Pipeline’s secret drilling fluids, plus hog farm odor complaints

Firefighting foam pours from a hose after a training exercise. (Photo: US Department of Defense)

It costs the City of Greensboro, make that the ratepayers, $9,000 a month, plus $1,000 a day, for a treatment system to reduce and remove per- and poly-fluorinated compounds — PFAS — from the drinking water.

Firefighting foam used in training exercises at Piedmond Triad International Airport is one likely source of the contamination. Foam leaves the runways and tarmacs, then enters Horsebend Creek, which drains north into lakes supplying the city’s water.

Storm water runoff from airports (which could also contain contaminants like jet fuel, oils and other petroleum products) is A-OK by the legislature. In 2017, lawmakers tucked a provision into Senate Bill 8 directing DEQ and local government to give airports a pass on runoff from runways, taxiways, and “any other areas” that flows into grass buffers, shoulders and swales.

Greensboro has learned the hard — and expensive — way that grass isn’t a proven PFAS removal system.

Ten years ago, water entering the city’s treatment plant rarely exceeded the EPA’s health advisory goal of 200 parts per trillion. But since the federal agency lowered the threshold to 70 ppt (for individual compounds or a combination), Greensboro has been forced to rent activated carbon technology to limit the levels in water flowing from hundreds of thousands of taps.

If the EPA further reduces the goal to the single digits, which is possible if not likely, “we’ll need to remove it all,” Mike Borchers, assistant director of the city’s Division of Water Resources said at a drinking water forum sponsored by the Cape Fear River Assembly.

A $30 million upgrade to the water treatment system will help keep the concentrations in check, but stemming the source is the more obvious — and cheaper — solution.

Is my water safe? “That’s not a simple answer,” Rebecca Sadosky, NC DEQ’s drinking water protection program coordinator, told the forum attendees. “There have always been things in the drinking water.”

Hardly heartwarming, but the fact is that safe water doesn’t equal risk-free water. As detection technology improves, scientists and regulators are finding unforeseen contaminants, such 1,4 dioxane and GenX and other fluorinated compounds in our water supplies.

In addition to the pesky problem of plastic, bottled water isn’t necessarily better. The water could be sourced from another public system, which might have its own treatment issues. Bottled water isn’t regulated by the EPA’s Safe Drinking Water Act, but rather the FDA. Heads up, La Croix fans: Sparkling water is regulated as a soft drink.

University scientists from throughout the state will sample 190 surface water intakes at public water systems, plus groundwater wells serving another 158 municipalities, as part of the NC Policy Collaboratory’s PFAS project.

Funded by a $5 million appropriation by the legislature, the project also includes studying the vulnerability of private wells to PFAS and developing treatment technologies to remove the compounds. Other science teams will analyze air emissions and atmospheric deposition of the compounds, such as Gen X.

The Collaboratory is required to file quarterly progress reports with the Environmental Review Commission. The first one was published on Oct. 1.

Air emissions are one source of drinking water contamination for residents living near the Chemours plant on the Bladen-Cumberland county line. Compounds leave the plant’s smokestacks and then fall to the ground, seeping into private water supplies.

So it’s not surprising that four types of PFAS (but not Gen X) were found in the blood of all 30 people who volunteered for a test conducted by the NC Department of Health and Human Services, Policy Watch reported this week. These residents live near the Chemours plant and depend on well water. 

Waterways in North Carolina can’t get a break. Some ingredients in drilling fluids and additives used for construction of the Atlantic Coast Pipeline are deemed “trade secrets.” Unless Dominion and Duke Energy decide you’re on a need-to-know-basis, it’s impossible to (legally) know what’s in them.

They call it an inadvertent return. Most people would call it a toxic spill. (Photo: Atlantic Coast Pipeline federal filings)

When these drilling fluids, also known as “mud,” spill — and they do spill — it is known in Orwellian terms as “an inadvertent return.” The Atlantic Coast Pipeline LLC’s own federal filings say that if this ahem, return “occurs in a waterbody it will be more difficult to contain because the fluid will be dispersed into the water and carried downstream.”

From water to air: At a recent meeting of the Environmental Management Commission, member Marion Deerhake asked DEQ staff to supply statistics on odor complaints from industrialized hog farms, back to 2000 when the agency began collecting the data.

DEQ is still digging up numbers from early years of the program, but from 2012 to 2017, there were a total of 34.

Here are the statistics by year:

  • 2012             11
  • 2013               5
  • 2014               4
  • 2015               2
  • 2016               3
  • 2017               9

Judging from testimony in the three hog nuisance trials, many, if not most people don’t know how to file a complaint or whom to complain to. Start with Debra Watts, supervisor of DEQ’s Animal Feeding Operations branch: 919-707-3670 or debra.watts@ncdenr.gov .

agriculture

Before next week’s legislative session, one voice state lawmakers MUST listen to on hurricane recovery (Audio)

Ahead of the October 15th special session, House and Senate members would be wise to listen to Grady McCallie with the NC Conservation Network on changes the state should make to minimize destruction from the next big storm. McCallie joined NC Policy Watch’s Rob Schofield in studio last week to discuss Hurricane Florence and efforts to protect agriculture, North Carolina’s waterways, and what you need to know about rebuilding in the floodplain:

Click below to listen to the full 12-minute interview:


agriculture, Environment

This Week in Pollution: coal ash, hog lagoons and a wayward EPA

Rainfall from Hurricane Florence overlaid with the locations of industrialized livestock operations. (Map: Environmental Working Group)

Good morning, before I delve into the weekly recap of Contamination’s Greatest Hits, I want to tell you what I just heard at the NC Chamber of Commerce’s Agri-Business conference this morning.

Ray Starling, who used to be with the NC Department of Agriculture, is now chief of staff at the USDA. One day, Starling said, he was in the Oval Office visiting with President Trump. “On the president’s desk was a box made of wood with the presidential seal on one side and it had a red button. The president pushes the red button. I thought the floor was going to open up in front of me and I would fall through it. I was fairly certain some country had been blown off the map.”

Instead, Starling said, “moments later a man entered the Oval Office carrying a silver platter” with a Diet Coke for the president.

And now you know.

First up, a perennial favorite since 2014: Coal ash. Sampling by Upper Neuse Riverkeeper Matthew Starr near the inactive coal ash basins at the HF Lee plant, showed arsenic levels in the Neuse River, the drinking water source for Goldsboro, at 186 parts per million, far above the drinking water standard of 10 ppm. Near the Sutton plant, whose lake drains into the beleaguered Cape Fear River, also a major drinking water supply, the results were an off-the-charts 710 ppm.

Meanwhile, Duke Energy and the NC Department of Environmental Quality each did its own testing near both HF Lee and Sutton. DEQ found elevated levels of copper near Sutton, but both the agency’s and the utility’s samples indicated arsenic contamination was below drinking water standards there and at HF Lee.

How can these results be so contradictory — one set menacing and the other hunky-dory? Well, the variations can hinge on several factors: where and when the samples were taken, and how far into the water column — in other words, how deep the samplers plunged the bottle. Sediment, aka dirt in the riverbed, would be even more telling, because the contaminants might have nestled there. But sediment rarely stays put. Boats, storms, wind can all stir it up, sending contamination downstream.

DEQ and Duke, and the riverkeepers, will continue to monitor potential contamination in the rivers.

Speaking of coal, the EPA (rechristened for the purposes of this column as Experiencing Peak Apocalypse) plans to roll back mercury emissions rules for coal-fired power plants. Mercury, also known in 14th-century parlance as quicksilver, is not an element to be messed with. (Nonetheless, in eighth-grade science class, we entertained ourselves by goosing globules of it on our desks. This occurred in the dark ages of 1978, when trepanation may have still been in vogue in my small town.)

Historically, coal-fired power plants have been major emitters of mercury. When the mercury falls back to the Earth and enters water, it converts to methylmercury. Fish take up methylmercury, and when people eat fish, they also get a dose. Mercury can harm the nervous system, including that of a developing fetus, which is why pregnant women are advised to restrict their intake of certain mercury-prone species, such as tuna. There are fish advisories for mercury contamination in waterways throughout North Carolina for everyone.

Who thinks weakening mercury rules is a good idea? The New York Times breaks down the issue, but essentially the EPA, led by former coal lobbyist Andrew Wheeler, reasons that the cost to industry to adhere to the rule is greater than the public health costs if the rule is rolled back. I’d like to see the math on that, right after I cough up this lung. Nonetheless, the score is Industry 1, Health Benefits 0.

Also lurking in the post-Hurricane Florence waters of eastern North Carolina is millions of gallons of hog and poultry waste. Policy Watch reported this week on the many farms that still lie within the 100-year flood plain. The.Waterkeeper Alliance and the Environmental Working Group released a set of maps overlapping historic rainfall amounts with the density of these industrialized operations. The EWG’s spatial analysis concluded that “there are 926  concentrated animal feeding operations, or CAFOs, housing more than 3.8 million hogs and 578 poultry CAFOs holding an estimated 35 million fowl in areas where the National Weather Service said flooding was ‘occurring or imminent’ after Florence.”

Hog farms often receive the most attention, unlike poultry farms, which escape necessary scrutiny because they are virtually unregulated. These farms that use “dry litter” (which no longer stays dry in a flood) aren’t required to have a permit. We don’t know where they are or who might have complained about them.

On the issue of hog farms, the Waterkeeper Alliance is suing the EPA over exemptions bestowed upon these industrialized  operations. Unlike many other polluting industries, these farms aren’t required to inform state and local officials about dangerous levels of pollutants that could be emanating from the operations.. For many industries, these disclosures are required under the Emergency Planning and Community Right to Know Act. However, the Fair Agricultural Reporting Method Act gives the livestock industries a pass on reporting air emissions — ammonia, sulfur dioxide, particulate matter — that can exacerbate respiratory illness of those living near the farms.

Living near these concentrated animal feeding operations might shorten your lifespan, according to a September article published by Duke University scientist Julia Kravchenko and four of her colleagues in the NC Medical Journal.

The study concluded that North Carolina communities located near hog CAFOs “had higher all-cause and infant mortality, mortality due to anemia, kidney disease, tuberculosis, septicemia, and higher hospital admissions/emergency room visits of low-birth weight infants.”

The study doesn’t go so far as to establish causality with exposures from hog CAFOs, but the authors write that future studies are needed to “determine factors that influence these outcomes, as well as the need to improve screening and diagnostic strategies for these diseases in North Carolina communities adjacent to hog CAFOs.”

Given these findings, it was disheartening to hear Dennis Kelly of Syngenta tell the agribusiness crowd this morning that one of the greatest concerns of farmers is “security — knowing you won’t be sued. That you have the right to farm according to normal agriculture practices.”

Somebody, please push the red button. No, the other one, where I get to fall through the floor.

agriculture, Environment

In Bladen, Brunswick, Columbus and Craven counties, scores of swine farms lie in flood plains

Bladen County: 156 permitted swine farms, 30 of which are in or touching the 100-year flood plain and floodways.

Note: This is the second in a series of posts this week about the state’s swine farm buyout program, which is being revived after an 11-year hiatus. The coverage will include maps of more than a dozen counties and the locations of their flood plains and hog farms. See yesterday’s post for a primer on how the program works. These maps were built using open-source software, QGIS, and are based on DEQ’s list of animal feeding operations, FEMA flood plain maps and county overlays to indicate locations of cities and towns.

It’s not a coincidence that some of the areas hit the hardest by Hurricane Florence are low-lying regions that sit on sandy soil in the Coastal Plain. The highways and county roads seem to sit right on the water table.

Nor is it a coincidence that industrialized livestock operations, particularly swine farms, are also located here. As tobacco dried up as a major source of farming income, and other major manufacturing industries went abroad, giant hog farms filled the vacuum, some with 5,000 — even 10,000 — head of swine.

But swine farms and flooding don’t mix. After three hurricanes hit North Carolina in 1999, flooding the open waste lagoons, turning waterways into fetid baths of feces, the state started the Swine Farm Buyout Program in order to remove the most vulnerable farms from the areas most prone to flooding.

The Federal Emergency Management Agency, commonly known as FEMA, designates 100-year and 500-year flood plains. A 100-year flood plain is classified as an area where there is a 1 percent chance of annual flooding. FEMA considers a 500-year flood plain as where the chance is 0.2 percent.

This information is not only important for local emergency managers, but also for insurance companies, which adjust rates (or deny policies) on structures in those areas.

 

 

Eleven of 15 of swine farms located in Brunswick County are located in or adjacent to a 100-year flood plain.

But as these maps show, many farms remain in the 100-year flood plains. There simply isn’t enough state funding, even with federal matching grants, to buy them all. In Brunswick County, for example, nearly every farm is in or touching the flood plain.

 

Of the 50 swine farms in Columbus County, about half lie within or near the 100-year floodplain.

 

Also near the coast, just north of Wilmington, Columbus County is home to the fresh-water Lake Waccamaw, the anchor of a state park popular with boaters and fishers. One swine farm lies just northeast of there, in the flood plain that is a natural part of the geography.

Craven County has 30 permitted swine farms, more than half of which are in or touch the 100-year flood plain.

Craven County, among the areas that took the brunt of Hurricane Florence, is veined by the Neuse River. All of the hog farms lie upstream of where the river enters the Pamlico Sound and its sensitive estuaries before flowing into the Atlantic Ocean. About half of those farms are situated in flood-prone zones.