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.

The report also summarizes an air quality study conducted in Duplin County to determine the level of pollutants related to swine farms — particulate matter, ammonia and hydrogen sulfide. It found no exceedances, but a leading air quality scientist criticized DEQ’s study design, noting that the monitors were placed where they would not detect odors.

The agency also received more than 100 comments on its Community Mapping System, which shows most of the polluting industries, permit holders, contamination incidents, as well as health data for census blocks. Its intended  for communities, industry, economic developers and elected officials to use when deciding whether to invite or allow polluting industries to locate in certain areas.

In many, if not most cases, local officials don’t consider environmental justice in siting these industries.

However, critics say the system doesn’t appear to influence state or local policy. “The agency could better ensure equity by developing a robust mapping tool to identify the communities suffering the most from the impacts from industrial hog operations,  then use this tool to inform permitting decisions.” said Ellen Simon, spokeswoman for the Waterkeeper Alliance. The alliance’s nationwide network of river keepers monitor water quality in their respective areas.

Simon added that information could be used to require CAFOs to lessen their cumulative impacts — and to consider other pollution sources — on neighborhoods.

DEQ, though says the mapping system does help inform agency staff about communities that could be affected by permitting. “It’s a resource that informs discussions or questions during the process,” Martin said, “and helps guide the level of public engagement to reach community members.”

Elizabeth Haddix and Mark Dorosin, now with the Lawyers’ Committee for Civil Rights, had filed a civil rights complaint against DEQ in 2014 on behalf of several environmental justice groups and neighbors of industrialized hog farms. They said that in issuing the general swine permits, DEQ had disproportionately burdened communities of color and low-income neighborhoods, which are more likely to live near these operations.

The EPA determined the complaint was valid and ordered the parties into mediation. Those talks broke down in 2016, when during the previous administration, DEQ officials invited the NC Pork Council to attend a confidential mediation session. The neighbors filed a second complaint, alleging intimidation, which the EPA also found to be valid, writing that it had “grave concerns” about the incidents.

In 2018, DEQ Secretary Michael Regan announced that a settlement had been reached with the complainants.

DEQ subsequently hired an environmental justice coordinator and committed to investigate complaints more quickly, even the same day, if possible.

However, DEQ can’t yet fulfill some of its obligations listed in the report. Last year, the Farm Bureau filed for a contested case hearing over the general permits. An administrative law judge last week placed a temporary stay on three provisions: annual reporting, groundwater monitoring in the 100-year-flood plain and calculating the loss of phosphorus from the sprayfields.

Judge Donald Overby determined that DEQ had overstepped its authority in including those requirements in the permit; instead, they must go through rule-making by the Environmental Management Commission.

DEQ spokeswoman Martin said the agency is “still reviewing the judge’s decision and evaluating the next steps, so it is too early to comment further at this point.”

Cadogen said that DEQ should “push back on that decision in every way possible. … DEQ is beholden to the legislature. The legislature is beholden to the industry, and no one is looking out for communities. We also call on North Carolina’s lawmakers to support our regulatory agencies so that they feel empowered to do the right thing.”

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