agriculture, Courts & the Law, Environment

In a setback to Murphy-Brown, hog nuisance suits can go on, federal judge rules

Ham produced by Smithfield, which is part of Murphy-Brown (Photo: Amazon)

This story is part of a larger series on the national pork industry that NC Policy Watch is co-publishing with Environmental Health News. The series, Peak Pig, begins at EHN today.

On Wednesday, Policy Watch will examine the history of nuisance suits, plus swine waste-to energy technologies, and more.

The 26 nuisance lawsuits against hog giant Murphy-Brown can proceed to trial, a federal district court judge ruled last week. While the decision marks a brief victory for the residents living near the industrialized hog farms, the litigation might be the last of its kind in North Carolina.

In his 33-page ruling, Senior US District Court Judge Earl Britt undercut some of Murphy-Brown’s arguments, while allowing others: Britt did seal several pieces of evidence because it purportedly contained confidential business information. And he agreed to hear a motion in December that would separate the cases.

That strategy could make the lawsuits more expensive for the plaintiffs. And should one plaintiff lose, legal precedents might arise in court that could then jeopardize future rulings.

Mark Anderson, attorney with McGuire Woods, which is representing the pork producer, did not return an email seeking comment.

But Britt did set a tone that partially favored the plaintiffs. He discounted Murphy-Brown’s contention that their farms are immune from nuisance litigation under the state’s Right to Farm law. That law essentially shields industrialized livestock operations from nuisance suits if the plaintiffs have “moved to the nuisance”; in other words, precedence generally goes to whoever was there first, the residents or the farm.

In this case, many of the plaintiffs are living on land that has been in their families for generations.

“Their land use had been in existence well before the operations of the subject farms began,” Britt wrote. “The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court’s analysis.”

These lawsuits against Murphy-Brown — the nation’s largest pork producer — prompted the creation of House Bill 467. Now law, the controversial measure prohibits plaintiffs who win nuisance suits from being awarded compensatory damages, including money to pay for medical treatment related to a farm’s odor, flies and noise.

Instead, winning plaintiffs can recover only damages that cover the devaluation of their property. Given that their property values could already be decreased because of the proximity to an industrialized farm, that amount of money would likely be negligible in comparison. Plaintiffs can still be awarded punitive damages, but those claims are much harder to prove.

The justification, lawmakers said, was that the number of lawsuits would supposedly financially hobble the billion-dollar agribusiness.

“Industry can’t sustain this,” said Sen. Brent Jackson during a debate on the bill. “Without livestock there would be tumbleweed rolling down city streets.”

Considering the political and financial muscle of Murphy-Brown, that scenario is unlikely.

At one point this year, it was uncertain if the 26 lawsuits could even go on. Under the original version of HB 467, the litigation would have been tossed. That’s because the bill language would have applied the law retroactively, to cases that had already been filed. The suits were filed in 2015.

The retroactive provision threatened the bill’s viability, so it was struck. Nonetheless, earlier this fall Murphy-Brown tried to halt the lawsuits by arguing that the state legislature intended to include the retroactive language, but didn’t. Britt’s ruling doesn’t address that motion specifically, but by allowing the cases to go to trial, he appears to discount it.

Britt’s decision also undercuts some state lawmakers’ arguments that the courts needed clarity from the legislature. “North Carolina law is not clear on these kinds of nuisance issues,” said State Rep. Jimmy Dixon during a committee debate.

“Judge Britt could deduce from existing precedent” the legal remedies available for the plaintiffs,” said Will Hendrick, staff attorney for the NC Pure Farms Pure Waters Campaign, this week. “He didn’t need guidance.”

Judge Britt will hold a hearing on several motions on Dec. 4, at the federal courthouse in Raleigh.

 

Hog Order Britt Nov by Anonymous B0mRtPKjko on Scribd

Environment

DEQ confirms van der Vaart, Evan on “investigatory leave” — apparently with pay

The email was brief, just a sentence-long, and sent to the media shortly before 9 last night: “DEQ employees Donald van der Vaart and John Evans have been placed on investigatory leave.”

The statement was attributed to NC Department Environmental Quality Secretary Michael Regan and came from the agency’s communications director, Jamie Kritzer. It was prompted by an Policy Watch story yesterday that reported van der Vaart nor Evans, former top officials at DEQ, had been inexplicably absent for work and without a definite return date.

Van der Vaart and Evans have worked as section chiefs in the Division of Air Quality since the first quarter of this year. That’s when van der Vaart demoted himself and Evans– both political appointees under former Gov. Pat McCrory. to avoid being fired by the new administration.

No reason was given for their placement on leave, but both men had openly rebuked current leadership’s environmental stance by publishing an anti-regulatory op-ed in a national law journal; meanwhile van der Vaart accepted an appointment to the EPA’s revamped and anti-regulatory Science Advisory Board, which DEQ leadership also opposed.

According to the state’s online disciplinary handbook, investigative leave “temporarily removes an employee from work status” but does not constitute a disciplinary action. However, the information during the investigation may be the basis of disciplinary action.

Presumably then, van der Vaart, who earns more than $98,000 a year, and Evans, whose annual salary is nearly $93,000, are being paid while on investigative leave.

There are four reasons to place an employee on investigatory leave, according to the handbook,

  • To investigate allegations of performance or conduct deficiencies that would constitute just cause for disciplinary action;
  • To provide time within which to schedule and conduct a pre-disciplinary conference;
  • To avoid disruption of the work place and/or to protect the safety of persons or property;
  • To facilitate a management directed referral or fitness for duty evaluation to ensure the employee’s safety and the safety of others and to obtain medical information regarding the employee’s fitness to perform his or her essential job functions.

Investigatory leave can last no longer than 30 days without written approval of the State Human Resources Director, for a maximum of 60 days. At the end of the leave period, an agency must place an employee on active work status or take disciplinary action.

Environment

Francis De Luca of Civitas loses argument against DEQ before Environmental Management Commission

Francis X. De Luca, president of Civitas (Photo: LinkedIn)

In his attempt to undermine a deal brokered among the court, state and Chemours, Francis X. De Luca offered the Environmental Management Commission some weak legal sauce.

De Luca, president of the conservative think tank Civitas, asked the EMC today to issue a declaratory ruling that ultimately could have voided a partial consent order between Chemours and the NC Department of Environmental Quality over GenX contamination in the Cape Fear River.

But the EMC voted unanimously that it would not meddle in an issue that, its members agreed, was outside their purview. “I don’t see our value in adding to that,” said Richard Whisnant, EMC member and former DEQ general counsel.

De Luca had argued that he had been denied the right to comment on the state’s deal with Chemours. Under that partial consent order, approved by a Bladen County Superior Court judge, DEQ agreed not to seek damages from Chemours as long as the company stopped discharging GenX and other perfluorinated compounds.

The consent order also requires Chemours to allow the EPA to turn over confidential information about these chemicals to DEQ, and to quickly provide the state with information, as requested.

De Luca was also upset that the consent order foiled his ability to pursue a citizen lawsuit against DEQ. He alleged that the order “appears to be a conspiracy between DEQ and Chemours specifically designed” to deny him a hearing in federal court.

Whisnant and other EMC members agreed that De Luca could still ask the court to designate him as an intervenor in the case. Otherwise, though, such an EMC decision could set a bad precedent.

“I dread the idea that anyone could file a petition who disagrees with a DEQ enforcement action,” Whisnant said. “That risks swamping the EMC’s time.”

Environment

Oil and gas commission will meet (for real) on Thursday — oddly, at the same time as the Energy Policy Council

The oil and gas commission will meet Thursday from 10 a.m. to 1 p.m. at 2420 Tramway Road in Sanford.

The state Oil and Gas Commission, whose previous meeting derailed because it was illegally convened, is scheduled to meet Thursday in Sanford. However, there remain some statutory questions about who called the meeting and if they did so in writing, as required.

The meeting will be held at the McSwain Education & Agricultural Center, 2420 Tramway Road, from 10 a.m. to 1 p.m.

Since there is no chairman, state statute requires five commission members to request the meeting in writing. Jim Womack, the controversial former chair who originally called the illegal meeting, told Policy Watch via email that seven of the nine members asked for the meeting to be held at the particular time and date. He did not respond to the question as to if it was submitted in writing. The NC Secretary of State’s Office, which lists public meetings on its website, has not returned calls requesting that information.

The timing of the meeting is also curious. The full Environmental Management Commission holds its day-long regularly scheduled meeting on Thursday, as does the Coastal Resources Commission. The state Energy Policy Council also convenes at 10:30. These meetings are scheduled from two months to one year in advance.

Because of these scheduling conflicts, the NC Department of Environmental Quality could be unable to send a representative to Sanford, said spokeswoman Bridget Munger.

The oil and gas commission is expected to elect officers and to discuss complaints filed by companies that want to frack for natural gas in Lee and Chatham counties. Both counties have enacted a temporary moratorium on fracking. One of the complainants, Orus Patterson, president of the “local geological service company and potential petroleum industry operator,” claims that the moratoriums usurp state authority and “interfere with my ability to complete proposed activities, including developmental work necessary to secure drilling permits in these areas.”

The red dots indicate the oil and gas wells that have been drilled in North Carolina from 1925 to 1998. None of these wells is associated with fracking. (Map: NC DEQ)

Environment

Worried about environmental damage, Pleasant Garden residents gear up to fight a proposed granite mine

 

Gerald Hall, known as the Egg Man, lives in Pleasant Garden. His farm would abut the proposed granite quarry. (Photo: Lisa Sorg)

Gerald Hall stood in his farm field, where the collards nearly reached his knees. On about three and a half acres between them, Hall and one of his brothers grow myriad greens, like Swiss chard and kale, and in the summer, warm-weather crops, such as tomatoes and peppers, all headed to restaurant and local groceries, including Deep Roots co-op in nearby Greensboro.

Hall, known around these parts as the Egg Man, also raises laying hens, whose eggs he packages by hand and then sells wholesale or by the dozen from a small shed a few steps from his house.

“I used to work in paving,” Hall said of his former job as asphalt manager for the City of Greensboro. “In the summer, we’d work all night. And the trucks would be hauling rock and asphalt all night long.”

Just when Hall thought he had left behind the stench of asphalt for the fresh country air, now he and his neighbors are battling a proposed granite quarry, that, if built, would abut his family’s 80-year-old farm in Pleasant Garden. Just 100 feet from Hall’s property, the trucks would fill their beds with rock that earlier had been blasted from an open pit in the earth, then haul it away — at times, all night long.

Tonight the Guilford County Commissioners are scheduled to vote on a rezone of more than 350 acres that was originally zoned to be a clay mine. But the hometown company, Boren Brick, never so much as took a steam shovel to the dirt. Instead, the company went out of business, and sold the land to Lehigh Hanson aggregate, a large subsidiary of a German company that owns hundreds of mines and quarries nationwide and 11 in North Carolina.

More than 2,000 people, including the mayor of Pleasant Garden, Carla Strickland, oppose the rezone, which would allow Lehigh to mine granite. Unlike clay, mining hard rock requires blasting. And blasting invites a host of potential environmental problems that could harm the quality of life of residents of rural Pleasant Garden. And there is a very real possibility that in the future, an asphalt or concrete plant could be built on an unused section of the Lehigh property.

There’s another complication to this story that started 80 miles away, in the stale halls of the General Assembly. This session, lawmakers passed House Bill 56. A grab-bag of environmental laws, the bill contains a controversial section that sharply limits public input once state environmental officials issue a mining or landfill permit. These permits are known as “life-of-site.” These permits are valid for as long as a company wants to keep blasting, keep digging, keep the trucks running all night long.

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This map shows the properties adjacent to the proposed mining operation. A2 is where the quarry would be sited. L and M are part of the 80-year-old farm belonging to the Hall family. N is Gerald and Mary Hall’s farm. AA, Z, X compose Heather Davis’s century-old farm. (Source: Guilford County; handwritten annotation Lisa Sorg)

“Somewhere back there is a big hunk of granite,” Heather Davis said, as we walked a muddy path through a forest owned by Lehigh Hanson. She knows these woods well, having played in them as a child. This land has a long history. Davis’s husband recently found a 1910 penny in the ground. Along the path, remnants of an abandoned home from the 1980s lie in ruins.

Davis’s family has farmed on Kearney Road for more than 100 years, qualifying it as a century farm. The family has been a careful steward of the property, installing a watering system to keep its beef cattle from polluting a creek that runs through the property. “It’s an environmental catastrophe.”

To the non-commercial eye, a piece of granite is merely an interesting rock. But to mining companies, it’s worth money, a commodity to be sold to builders of roads and makers of kitchen countertops. To get at the granite requires enormous force, like extracting a wisdom tooth embedded in the bone. Miners use dynamite to blast, which Toby Lee, general manager of Lehigh Hanson’s North Carolina operations, says “makes little rocks out of big rocks.”

Blasting and mining, though, can have environmental consequences. First, depending on the geology and topography of a region, the force of the dynamite can change the flow of groundwater. Groundwater that once flowed north to south might turn southeast. If you depend on groundwater for your drinking water well, that slight change in direction can mean the difference between Davis having water — or not.

In the process of mining and quarrying, excavators eventually dig deeply enough to hit the water table. The enormous pit fills with water, and to continue excavating, mining operators must “dewater.” The process is similar to a wet vac, but instead of slurping up a few gallons of water, it drinks the pit dry. That creates what’s known as a “cone of depression,” in the aquifer. The water from nearby private wells run dry, as well.

Documents filed with the rezoning application state that wells deeper than 300 feet should not lose water as a result of the mining. Davis’s well, the fourth they’ve had to drill, is shallow — 250 feet. It could go dry. A groundwater analysis conducted on behalf of Lehigh Hanson identified 84 wells on 300 parcels within a mile of the proposed quarry. The average depth is 200 feet.

Hall uses well water to irrigate his crops. “If I run out of water for any length of time, I’m done,” he said. “This is my only source of income.”

The effects on residents’ groundwater and drinking water are only estimates. According to the groundwater analysis, there could be unexpected complications once excavation begins. “Based on results of study and understanding of mine pit development,” the document reads, baseline monitoring of a few select private wells should also be considered in the event that actual conditions beneath the site are different than anticipated.” Read more