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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Environment, Legislature

House bill would ban sale, production of PFAS in North Carolina

(Illustration: EnviroScience Inc.)

Companies could no longer manufacture PFAS, also known as perfluorinated compounds, in North Carolina under a new proposal, House Bill 1109.

If enacted into law, the measure would also prohibit the export of the toxic compounds, “except for products specifically authorized or required to contain PFAS under federal law.”

The bill was introduced May 14; it has eight co-sponsors, all Democrats: Pricey Harrison, John Autry, Alison Dahle, Susan Fisher, Marcia Morey, Deb Butler, Zack Hawkins and Raymond Smith.

There are 5,000 types of PFAS. Most are used in, or byproducts of, the manufacture of dozens of waterproof and stain-resistant consumer goods, such as clothing, cookware, pizza boxes, microwave popcorn bags, and more.

Of the few types of PFAS that scientists have studied, all have been linked to various health problems in humans, including several cancers, thyroid disorders, low birth weight, high blood pressure during pregnancy, ulcerative colitis and high cholesterol.

The compounds are widespread in the environment, especially rivers, lakes groundwater and drinking water supplies. They are often referred to as “forever chemicals” because they take decades to degrade.

The bill would allow DEQ to assess civil penalties of $5,000 to $25,000 for the first offense, and $10,000 for subsequent offenses. The maximum penalty for one month is $200,000.

It also would appropriate $100,000 in one-time money for additional monitoring and enforcement.

Several of the same sponsors also introduced two additional PFAS-related measures:

  • HB 1108 would require any company that discharges PFAS into the waterways to disclose the types, amounts and concentrations in order to receive a permit from the NC Department of Environmental Quality.

The same information would be required of wastewater treatment plants, both public and private, that receive discharges from industry. Those plants would have to remove the PFAS before discharging or require the industrial source to do so.

Among the other provisions are requirements for DEQ to study PFAS in landfill leachate and in biosolids that are applied to land.

PFAS enter landfills when contaminated consumer goods are thrown away. Leachate is liquid from the garbage that is captured in tanks beneath the landfill.

Biosolids are generated from wastewater treatment plants and used to fertilize agricultural fields. However, when it rains runoff from those fields can send PFAS into the groundwater and surface water. From there, the compounds can enter the drinking water supply.

In addition to the $5 million to DEQ for water quality monitoring, the State Water Infrastructure Authority would receive $80,000,000 in one-time money to issue matching grants to water systems to build or improve their  drinking water treatment systems to “substantially reduce public exposure to detectable PFAS.”

  • HB 1110 would require two state agencies to study the various effects of the compounds on human health and wildlife. DEQ  would be required to create an inventory of direct and indirect discharges of PFAS into surface water, air, groundwater and soil.

The Office of Management and Budget would calculate costs to local and state governments, several of which have had to spend millions of dollars to upgrade their drinking water treatment systems to reduce PFAS levels; those expenses are then passed on to ratepayers.

The NC Policy Collaboratory would also be charged with studying the future costs of removing or reducing the contaminant loads.

The bill would appropriate $600,000 for the studies.

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.

 

Environment, Trump Administration

DEQ, NC Attorney General sue Trump administration over Clean Water Act rollbacks

The NC Department of Environmental Quality and the state Attorney General’s office have joined 16 other states in suing the Trump administration over rollbacks of Waters of the United States rule, also known as WOTUS.

The rule, which narrows the scope of waters that must be protected under the Clean Water Act, is scheduled to take effect on June 22, 2020.

Enacted by Congress in 1973, WOTUS,  regulates “navigable waters” — rivers, lakes, streams, wetlands and seas, as well as any waters that directly connect to them. This rule plays out in real life when an industrial plant wants to discharge pollutants into a river or a state transportation department wants to fill in a wetland to build a road. In each case, the entity must get a federal and state permit detailing the extent of the harm it can exact.

In. 2015, the EPA under the Obama administration strengthened the WOTUS rule based on science. New research showed the importance of underground hydrological connections between ephemeral or intermittent streams and their more robust counterparts. Obama’s WOTUS rule acknowledged the ecological value of isolated wetlands in providing flood control and wildlife habitat. It did not, contrary to the rule’s opponents, apply to most farm ditches, farm ponds, and storm water retention areas in housing developments.

But the Trump administration, catering to the real estate interests, agribusiness, mining companies, pipeline builders, and industrial dischargers, has rolled back WOTUS and other key provisions in the Clean Water Act. Fewer protections for streams and wetlands mean some of these sensitive waterways would be polluted, filled in, dredged, or paved over with impunity.

The EPA’s own documents show that nationwide, 18% of all streams are considered “ephemeral,” meaning they are only filled with water primarily after rainfall; they would lose protections, even though they contribute to ecosystems and aquatic habitats.

Wetlands, too, are imperiled by the EPA rollback. “This rule threatens decades of improvements in water quality and endangers North Carolina’s unique wetlands,” said DEQ Secretary Michael S. Regan. “This historic rollback of protections will result in a significant loss of natural resources and it is not based on science and runs counter to decades of EPA policy. DEQ will continue to use the state’s authority to protect water quality and the associated economic benefits to North Carolina.”

For example, wetlands that are connected by groundwater to a regulated lakes or stream would no longer be protected. Nor would wetlands that physically separated from those waters by human-made dikes or barriers. (Technically, all that would be needed to circumvent the Clean Water Act is to build such a barrier.

In its court filings, DEQ and the NC Attorney General argue that the new rule arbitrarily narrows the existing definition of waters protected under the Clean Water Act and excludes many of North Carolina’s wetlands. These wetlands play a critical role in filtering pollution and slowing stormwater during flooding events.  “The new rule also reduces protections for drinking water sources, risks damage to our fishing industry and increases flooding risks from runoff and sea-level rise,” DEQ said.

The case has been field in US District Court of Northern California. It asks the court to vacate the Trump administration rule and to declare it “capricious, arbitrary and unlawful.”

Environment, Trump Administration

EPA undermines mercury, air toxics rules and no one’s happy except coal companies

Duke Energy’s coal-fired power plant in Asheville in 2014; the utility has since retired that facility and seven others in North Carolina, retrofitting them as natural gas units. (Photo: Greenpeace)

Duke Energy is among many of the nation’s utilities that oppose the EPA’s latest gutting of air pollution rules, which discount health benefits of the regulations while amplifying the economic ones.

Known as MATS — Mercury and Air Toxics Standards — the rule regulates emissions of the potent neurotoxin mercury and other hazardous air pollutants from coal- and oil-fired power plants.

Children and developing fetuses are particularly vulnerable to mercury’s toxic effects. Exposure can permanently harm cognitive thinking, memory, attention, language, fine motor skills, and visual spatial skills.

While the EPA revisions don’t explicitly overturn MATS, they change the way the agency will calculate the costs and benefits of it — and future ones. This  will accomplish the same goal of relaxing environmental regulations.

“It’s very sinister,” said Carol Browner, former EPA administrator from 1993 to 2001. She now serves as chairwoman of the League of Conservation Voters. “They’re counting every single cost, but ignoring the fact that costs come down because innovation solves the problems more cheaply.”

When enacting or amending a rule, EPA is required to account in detail the public health, environmental and economic costs of a rule, and weigh them against those respective benefits. But the EPA’s new changes allow it to ignore some scientifically proven public health benefits, such as avoided heart attacks, strokes and asthma attacks. That will distort the cost-benefit analysis.

From 2011 to 2017, mercury emissions decreased 81% because of the MATS rule.

Duke Energy spokesman Philip Sgro told Policy Watch that the utility has invested billions of dollars to comply with the MATS rule, “and we support keeping the MATS rule in place. Our investments have paid off greatly, with the company reducing mercury emissions by 95% since 2002. Using some of the same technologies, we have also reduced sulfur dioxide emissions by 96% and nitrogen oxides by 74% since 2005.”

The EPA’s current revisions were prompted by a 2015 US Supreme Court decision that stated the agency had not fully considered the costs to industry in crafting the mercury rule. The Obama administration recalculated the costs — at roughly $9.6 billion annually — and reissued the rule in 2016.

In a press release, the EPA said the new revisions correct the alleged flaws in the 2016 rule.

Joe Aldy, a professor of the Practice of Public Policy at the Harvard Kennedy School, said the EPA has ignored entire categories of major health benefits of the mercury rule, such as the number of avoided heart attacks — 4,700 per year. “The EPA zeroed this out,” Aldy said.

Public health experts have estimated the MATS rule has also prevented 11,000 premature deaths, 130,000 asthma attacks and 5,700 emergency room visits.

Since emissions control technology is already in place, the beneficiaries of the new action are coal companies and producers. Not coincidentally, EPA Adminstrator Andrew Wheeler previously worked as a coal lobbyist.

“This is disgraceful on part of EPA,” Browner said. “It’s nothing other than a giveaway to big polluters.”

The rollback also presents environmental justice issues. Dominique Browning, co-founder and director of Moms Clean Air Force, said that 68% of Black people live within 30 miles of a coal fired plant. Latino children are twice as likely to die from an asthma attack as white children.

Michael Brune, executive director of the Sierra Club, noted that the rollback is one of many the EPA has enacted during the COVID-19 pandemic. Earlier this month, the agency unraveled regulations on tailpipe emissions.

“What they’re doing on MATS is dismantling how agency is doing its business,” Browner said. “They’re doing severe damage to decision-making of the agency: changes in cost-benefits, changes in enforcement. They don’t stop.”