This post has been updated with comments from the NC Department of Environmental Quality.
The NC Department of Environmental Quality has settled a long-standing federal civil rights complaint that environmental and community groups had filed with the EPA.
The Waterkeeper Alliance, NC Environmental Justice Network and REACH (Rural Empowerment Association for Community Help) filed the complaint in September 2014, the complaint alleged that the state’s general permitting process for swine farms disproportionately burdens communities of color.
By allowing those facilities to operate with “grossly inadequate and outdated systems of controlling animal waste” the complaint alleged, there was an “unjustified disproportionate impact on the basis of race and national origin against African Americans, Latinos and Native Americans.”
Elizabeth Haddix and Mark Dorosin, attorneys with the Julius C. Chambers Center for Civil Rights, represented the complainants.
DEQ’s Title VI coordinator, Sarah Rice, could not be reached for comment. Update: NC DEQ issued a press release with a statement on Thursday afternoon:
“The agreement underscores DEQ’s commitment to strengthening environmental protection and public engagement in communities that are impacted by industrial swine facilities,” said DEQ Secretary Michal Regan.”
Naeema Muhammed, executive director of NCEJN, said in a prepared statement that she recognized the “groundbreaking” nature of the settlement. Yet she cautioned that “at the same time, the harmful effects of the hog industry on communities in eastern North Carolina continue, and all of us involved in this struggle need to keep the pressure on. There is still a long way to go to address the harms caused by the swine industry.”
Title VI civil rights complaints can be filed only against entities that receive federal funds. DEQ receives federal grants and other monies. That is why the hog industry was not a part of the settlement.
The settlement is lengthy, but the key points include a requirement that DEQ implement a temporary — and depending on the data, potentially permanent — ambient air quality monitoring in and around Duplin County.
DEQ has agreed to conduct at least one year of surface water monitoring in the affected areas, as well.
Other terms include enhancing public participation and transparency in granting animal waste permits. Within a year, DEQ will also prepare a draft rule designating a system of points, based on violations, to be assigned to farms operating under the general permit.
“While these changes may seem technical,” added Will Hendrick of Waterkeeper Alliance, “they will begin to address air and water pollution from the swine industry.”
The complaint originated in a disagreement over the state’s general permits for animal waste. In 2013, the complainants formally asked DEQ to modify the permits to account for the racial and ethnic impacts of the swine farms on neighboring communities before issuing the permits.
In addition, the complainants asked state regulators to “adopt measures that protect communities” from the noxious effects of the swine farms.
In 2014, under the leadership of then-DEQ Secretary John Skvarla, an appointee of Gov. Pat McCrory the state reissued the general permit requirements, essentially ignoring the complainants’ comments.
Haddix and Dorosin filed the civil rights complaint later that year, and the EPA agreed to investigate. It ordered the complainants and DEQ to hold a confidential mediation session.
But in January 2016, under the leadership of then-Secretary Donald van der Vaart, another McCrory appointee, DEQ officials apparently tipped NC Pork Council representatives to the mediation.
Even though the Pork Council was not a party to the mediation, several representatives showed up, anyway. Given the tense history between the Pork Council, swine farmers and their neighbors, the complainants viewed the intrusion as an attempt to intimidate them.
Haddix and Dorosin in turn filed a retaliation complaint on behalf of the complainants in the spring of 2016.
In September 2016, DEQ asked the EPA to dismiss the complaint. In a letter to federal officials, DEQ General Counsel Sam Hayes alleged it was “specious” and a “tactical collateral attack.” Hayes is no longer with DEQ; he now works as general counsel for the Department of the State Treasurer.
After Gov. Roy Cooper was elected and appointed Michael Regan as DEQ secretary, the complainants, with EPA approval, opted to try to engage in alternative dispute resolution rather than pursue the retaliation complaint.
Since March 2017, DEQ and the groups have been in mediation.
The settlement agreement became public just a day after Secretary of the Environment Michael Regan announced the formation of an Environmental Justice and Equity Advisory Board. The board includes Muhammed of the NC Environmental Justice Network.
This is the second settlement reached with DEQ. In December 2017, DEQ said that as part of a settlement, it would implement new protocols, including timelines for investigating complaints and considering all information submitted by complainants. Under the agreement, DEQ must detail documentation of how it responds to citizen complaints.
DEQ also agreed to maintain and update monthly an online list of complaints for which a determination of violation has been made. This allows citizens to track the outcome of their communications with DEQ.
The December agreement also requires DEQ to publish an annual report with detailed data about the number of complaints, their investigations and resolutions.
Today’s settlement signals another legal setback to North Carolina’s hog industry. Earlier this month, a federal jury awarded 10 plaintiffs from Bladen County $50 million in a nuisance lawsuit against Murphy-Brown, the world’s largest pork producer. Murphy-Brown intends to appeal the amount.
“For too long people living in Duplin, Sampson and other counties in the heart of hog country have had trouble breathing when they go outside,” Devon Hall, co-founder and program manager of REACH, said of today’s settlement with DEQ. “Even small changes in the permit can be important, like making clear that DEQ has authority to inspect without prior notice. It’s unacceptable that DEQ has been giving facilities advance notice before conducting an inspection, which means that the operation can just change what it has been doing and clean up before the inspector arrives.”