EPA launches civil rights inquiry into DEQ’s permitting of biogas systems on hog farms

The entrance to “High on the Hog,” an exhibit celebrating the state’s swine farming, at the Museum of the Albemarle in Elizabeth City (File photo: Lisa Sorg)

The Environmental Protection Agency is opening an investigation into whether state regulators violated civil rights law when last spring, they granted permits to four industrialized hog farms that are installing anaerobic digesters to produce biogas for renewable energy. The investigation is in response to a complaint against the NC Department of Environmental Quality filed by the Southern Environmental Law Center, which is representing several community groups.

SELC alleges that when DEQ granted the general permits to the Smithfield-owned farms, the agency failed to protect the surrounding communities from air and water pollution. A disproportionate share of the hundreds of families who live around the hog operations in Duplin and Sampson County are Black and Latino.

Under a federal civil rights law, known as Title VI, entities that receive federal funds can’t from discriminate on the basis of race, color, or national origin —intentionally or unintentionally.

“We are excited that the EPA decided to investigate this complaint.  As a ‘watch dog’ for those most negatively impacted by the hog industry, we consider the investigation of this complaint as a step in the right direction.  Nevertheless, we also understand that there is much more work to be done,” said Robert Moore, president of the Duplin County Chapter of the North Carolina NAACP, in a prepared statement.

The SELC complaint met the administrative requirements for the EPA to proceed; next the agency will determine whether the complaint has merit.

DEQ has 30 days to respond to the EPA. If the EPA finds the underlying issues of the complaint are valid, the case would initially go to mediation, which is legally required.

Parts of the SELC complaint to the EPA are similar to one it filed to the state Administrative Office of the Courts. Earlier this week, Administrative Law Judge Donald van der Vaart ruled that DEQ legally permitted industrialized hog farms to install the digesters on their waste lagoons. Van der Vaart previously served as DEQ secretary under then-Gov. Pat McCrory, and was known for his anti-regulatory stances.

The SELC’s state filing did not address civil rights laws.

This is the EPA’s third civil rights inquiry into DEQ’s handling of industrialized hog farms since 2014. That year, under DEQ Secretary John Skvarla, the Waterkeeper Alliance, NC Environmental Justice Network and REACH (Rural Empowerment Association for Community Help) filed a complaint alleging that the state’s general permitting process for swine farms disproportionately burdens communities of color.

The EPA ordered the parties into mediation, but in 2016 — under van der Vaart’s tenure — those talks broke down after DEQ brought members of the N.C. Pork Council and the Pork Producers to a confidential mediation meeting. In turn, Elizabeth Haddix and Mark Dorosin, who at the time worked for the UNC Center for Civil Rights, filed a retaliation complaint against the agency.

In 2018, under Secretary Michael Regan, DEQ reached a settlement with the UNC Center for Civil Rights and its clients. The key points included air and surface water monitoring, greater public participation and transparency, and new complaint and violation point systems.

Regan is now the EPA administrator.

In role as judge, Donald van der Vaart rules on behalf of DEQ, hog farms and against enviro groups

The black circles show the location of four confirmed farms that will send biogas to the Align RNG facility on Highway 24 in Turkey. Blue circles show farms closest to the pipeline route, but have not been confirmed. Nineteen farms will reportedly send biogas to Align RNG but neither Dominion Energy nor Smithfield Foods will disclose the names, not even to state regulators. (Base map and pipeline route: Land Management Group, submitted to the US Army Corps of Engineers; farm locations based on DEQ mapping tool and documents, and USACE filings)

The NC Department of Environmental Quality was legally right to allow industrialized hog farms to install equipment on their waste lagoons — known as anaerobic digesters — to generate biogas, the state’s chief administrative law judge ruled today.

The judge: former DEQ Secretary Donald van der Vaart, appointed to the post by State Supreme Court Cheif Justice Paul Newby last July. Van der Vaart, known for his anti-regulatory stances, served as DEQ secretary under former Gov. Pat McCrory.

Two groups, the Environmental Justice Community Action Network and Cape Fear River Watch, had contested DEQ’s permitting of anaerobic digesters — essentially enormous tarps — on waste lagoons at four farms: The Goodson Farm and the Kilpatrick Farm in Sampson County; and the Benson Farm and Waters Farm in Duplin County.

The digesters capture methane, which is then sent via pipeline to the Align RNG facility in Turkey in Sampson County. From there, Align RNG — a partnership between Dominion and Smithfield Foods/Murphy-Brown — upgrades the biogas and injects it into a natural gas pipeline. Duke Energy uses the gas to generate electricity.

Murphy-Brown intervened in the contested case, siding with DEQ.

The environmental groups’ challenge focused on two issues: whether state law regarding water quality protections applies to DEQ’s permitting decisions for these farms; and whether the farms’ digester permits must use waste treatment and disposal systems with the least harmful impact on the environment.

Biogas systems usually cover a single lagoon, but a second one is necessary to capture overflow; it is usually uncovered. The waste captured in the second lagoon is sprayed on nearby fields. This lagoon-and-sprayfield system contributes to odors, flies, and in some cases, even groundwater, drinking water and surface water contamination.

The groups also argued that DEQ should have also considered the air quality effects of ammonia emissions from the secondary lagoons and sprayfields.

DEQ and Murphy-Brown argued that the agency does not have the authority under state law to regulate or limit ammonia emissions through these permitting decisions. Ammonia emissions are included in permits only for new or expanding animal waste systems.

In addition to the four farms named in the contested case, there are a dozen more with approved digesters, according to DEQ. It is unclear whether any of these farms are part of the Align RNG project. More than a year ago, Align RNG refused to disclose t0 DEQ — despite the agency’s request — the locations of 15 of 19 farms that reportedly will supply the facility with biogas. A DEQ spokesman told Policy Watch that Align RNG has still not named those farms.

The environmental groups can appeal to New Hanover County Superior Court, where the case was filed. Cape Fear River Watch is headquartered in New Hanover County. The Southern Environmental Law Center represented the groups.

Active Energy, company behind proposed wood pellet plant, loses another argument in federal court

Active Energy Renewable Power occupies a 415,000-square-foot building in Lumberton, in Robeson County, that used to house Alamac American Knits. The company is contesting a lawsuit filed by environmental groups over alleged violations of the Clean Water Act. (File photo: Lisa Sorg)

Active Energy Renewable Power, the company behind a proposed controversial wood pellet plant in Lumberton, was dealt another legal setback this week in federal court.

Active Energy had asked US District Court Judge James Dever III to dismiss a citizen lawsuit alleging it had violated the Clean Water Act. Dever denied the company’s motion, which allows the case to continue.

Winyah Rivers Alliance, an environmental nonprofit, sued the company last year. In court documents, Winyah alleges that Active Energy violated the Clean Water Act by discharging industrial pollutants into the Lumber River and Jacobs Branch without a permit.

Active Energy denied the allegations. 

In 2019, Active Energy bought a 415,000-square foot building on 145 acres on Alamac Road to build a wood pellet plant that would use a new technology called CoalSwitch. 

The plant has yet to produce CoalSwitch pellets because of technical problems, as well as the lack of an air permit. The company, which has a troubled legal and financial history, operated a sawmill, which has closed.

There was already extensive groundwater contamination at the site — which the company was aware of — from previous uses, including a dry cleaners. Alamac American Knits had also operated a plant there, but closed in 2017 after several hurricanes flooded the facility.

Contaminants include toxic solvents, like TCE and PCE, as well as benzene, a known carcinogen.

Nonetheless, when Active Energy purchased the building and the land, it voluntarily assumed responsibility for treating any discharges at an existent onsite facility before they entered the waterways.

The lawsuit alleges that for almost a year, Active Energy violated the Clean Water Act by discharging stormwater pollution from its sawmill and other timber operations without a required federal permit. This is known as an NPDES, short for National Pollutant Discharge Elimination System.

Active Energy eventually obtained a stormwater permit, but the lawsuit alleges, continue to violate the Clean Water Act.

Those violations stem from the company’s failure to get a separate required permit for its industrial wastewater discharges. Instead of applying for its own authorization, Active Energy relied on Alamac American Knits permit, which was transferred as part of property deal.

However, emails between the company and the NC Department of Environmental Quality show that before Active Energy discharged any wastewater, it had to update the permit. 

Contaminants in discharges from the timber industry, for example, are different from those used in textiles, and need accounted for.

The company’s monitoring shows at more than two dozen types of pollutants entered the waterways, including zinc, copper, aluminum and total chromium. 

Attorneys for Active Energy rebutted the allegations. The permit the company inherited from Alamac American Knits did allow temporary discharges, while state environmental regulators reviewed a renewal application. Active Energy lawyers argued.

Judge Dever, appointed to the bench in 2002 by President George W. Bush, did not rule on whether Active Energy violated federal law, only that Winyah Rivers’ case was strong enough to continue.

Winyah Rivers is represented by the Southern Environmental Law Center. Active Energy’s attorneys are Shipman & Wright, based in Wilmington.

Gov. Cooper executive order calls for deeper cuts in greenhouse gas emissions, focuses on environmental justice

Gov. Cooper signed Executive Order 246 today at NC A&T University (Screenshot: Governor’s Facebook page)

Gov. Roy Cooper signed an ambitious executive order today designed to further reduce greenhouse gas emissions statewide and to emphasize environmental justice in agency decisions, beyond the NC Department of Environmental Quality.

Executive Order 246 sets several targets to mitigate the damage of climate change, including the reduction of statewide greenhouse gas emissions by at least 50% over 2005 levels by 2030; and net-zero emissions as soon as possible, no later than 2050.

The 50% reductions are in line with U.S. commitments under the international Paris Agreement.

“One of the main goals of my administration is to move us toward a clean energy economy to fight the existential threat of climate change and to create good paying jobs,” Cooper said at the signing ceremony at NC A&T University in Greensboro. “We know that climate change has caused more severe storms and often the effects of these storms hurt most the people who can afford it the least.”

The new goals build on a previous executive order, known as EO 80, that the governor signed in the fall of 2018. That document set a goal of a 40% reduction in statewide greenhouse gas emissions over 2005 levels, and 80,000 registered zero-emissions vehicles by 2025.

Executive Order 218, signed last June, advances North Carolina’s offshore wind energy.

The state’s progress toward the 2018 goals will likely be revealed in an updated state greenhouse gas inventory that the NC Department of Environmental Quality must release by Jan. 31.

Environmental justice composes a significant portion of the executive order. Each cabinet agency “shall identify” and environmental justice and equity lead to serve as a point person for those initiatives. These include sharing data and activities, as well as agency decisions that could significantly affect communities of color and underserved areas.

“For too long, our low- and moderate-income communities, communities of color and indigenous communities have been disproportionately impacted by pollution and climate change,” Cooper said, adding that his order “prioritizes funding” to mitigate the harm of climate change in these areas.

NC DEQ Secretary Elizabeth Biser: “What’s good for the environment is also good for our economy.”

These interagency communications, both internally and with the public, are important. In some cases, an agency, such as the Department of Transportation or the Department of Commerce approves projects with environmental justice ramifications.

For example, DOT’s 540 toll road extension in Wake County runs through a portion of a low-income mobile home community. And the Commerce Department has the power to grant incentives to polluting businesses and industries; Active Energy, a proposed but as yet operational wood pellet plant was awarded $500,000 in building reuse funds, even though the facility’s emissions would create air pollution. That money has yet to be distributed because the status of the plant is in limbo.

The executive order sets several additional deadlines:

  • Each agency also must develop a public participation plan for underserved neighborhoods and communities of color by
    June 1.
  • The state’s “Deep Decarbonization Pathways Analysis” will evaluates potential ways to reduce emissions to achieve the 2050 net-zero goal and any interim targets. The Pathways Analysis shall be completed for the state Climate Change Interagency Council to submit to the governor by Jan. 7, 2023.
  • DOT, DEQ, the Commerce Department, and other relevant agencies, shall develop a North Carolina Clean Transportation Plan for the Climate Council to submit to the governor by April 2023.

DEQ Secretary Elizabeth Biser said the governor’s order provides economic, environmental and public health benefits. The order contains measures to ensure that “those benefits reach every community as we advance climate and energy goals,” Biser said.

James Johnson, chairman of the Secretaries’ Environmental Justice and Equity Advisory Board: “In several important ways this executive order casts new  light on environmental inequities and imposes greater accountability on the state to address inequity.”

Environmental advocates quickly commented on today’s order:

“Gov. Cooper’s Executive Order No. 246 offers a robust, sensible roadmap for combating climate change that will help steer North Carolina toward a cleaner, carbon-free future. The order also brings more needed attention to the issue of environmental justice and equity. The voices of impacted and underserved communities deserve to be given weight in the halls of power, and this order is a step in the right direction.” — Brian Buzby, executive director, NC Conservation Network

“The voices of communities disproportionately impacted by sources of pollution must be front and center on policy decisions affecting their health. We are hopeful that today’s action will begin that process. For far too long BIPOC communities have suffered from environmental racism, with heavy industrial activity and pollution clustered in their neighborhoods. This Executive Order will finally require all state agencies to listen to residents before, during, and after economic development decisions are made.” — Daisha Williams, environmental justice manager, CleanAIRE NC

“We are excited that Gov. Cooper is continuing to lead our state on a just transition toward a clean energy and clean transportation economy. ‘Just’ is the key word here. This new executive order not only ramps up this transition for all North Carolinians but puts a focus on ensuring justice and equity for the communities most impacted by pollution and climate change, namely communities of color.” — Montravias King, Clean Energy Campaigns director, NC League of Conservation Voters

“For too long, conversations regarding equity and climate have been siloed, when in reality these issues deeply intersect as historically marginalized communities bear the disproportionate burden of pollution and are on the frontlines of increasingly damaging climate impacts. EO246 sets the stage to consider these issues in tandem, which is essential to making meaningful progress towards a more equitable, climate-safe future.” — David Kelly, North Carolina state director, Environmental Defense Fund

“For years, we’ve been advocating that the Cooper administration expand its focus on climate change to include the transportation sector, which is quickly becoming the number one source for heat-trapping emissions in North Carolina. We welcome the governor taking this step and look forward to working with the administration to create a meaningful clean transportation plan that sets out wide-ranging strategies to reduce emissions, and to do so equitably.” — Mary Maclean Asbill, director of the Southern Environmental Law Center‘s North Carolina office

“Since transportation emissions are the nation’s top contributor to climate change, we’re very pleased that the executive order sets up a pathway to decarbonize North Carolina’s transportation sector. This executive order answers the need to move beyond fossil-fueled transportation.” — Cynthia Satterfield, state director of the NC Sierra Club

At nearly 600 acres, Pilot Mountain wildfire triggers air quality alert near Winston-Salem, statewide burn ban

At least 15% of one of the state’s most popular parks, Pilot Mountain, has burned in a wildfire, according to state and federal data, and the blaze is still not under control. The fire has consumed more than 570 of the park’s 3,872 acres.

Smoke drifted over US 421 in Winston-Salem Monday afternoon, blown in from fire, which is less than 30 miles north of the city. Extremely fine particulate matter known as PM 2.5 prompted the EPA to issue a a Code Red air quality alert for Surry, Yadkin, western Forsyth, northeastern Iredell, and Davie counties. Code Red means air quality is unhealthy, not only for people with heart or lung disease, but even low-risk groups. The EPA advises people to reduce the time spent outdoors and to avoid strenuous activities, like running.

Red represents areas where air quality is considered unhealthy for both low-risk and at-risk people. Orange designates areas where the air is unhealthy for people with heart or lung disease, including asthma. Yellow shows where air quality is moderate. (Map: AirNow.gov)

Other nearby counties were under a Code Orange, meaning air quality is unhealthy for sensitive people.

The incident at Pilot Mountain in Surry County, is known as the Grindstone fire. Human activity caused the incident, according to the National Interagency Fire Center, although it’s unclear whether it was accidental or intentional.

A campfire started a second blaze, at Sauratown Mountain, in Stokes County, which has charred 40 acres. The NC Forest Service reports that 95% of that fire is under control. Federal data show the cost of extinguishing the fire has exceeded nearly $278,000.

These fires are just two of the 697 reported in November, according to the NC Forest Service — 50 of them on Monday alone. More than 1,600 acres on private and state-owned land have burned.

Extremely dry as well as windy conditions have prompted the NC Forest Service to issue a statewide burn ban, which prohibits all open burning. Violators can be fined $100 plus $183 court costs. Any person responsible for setting a fire may be liable for any expenses related to extinguishing the fire.

More than three-quarters of North Carolina have been classified as abnormally dry or in a moderate drought, according to the state drought monitor. Stokes and Surry counties are listed as abnormally dry, but new data will be released Wednesday morning.

The number of fires this year — 2,801, with nearly 8,500 acres burned– has already exceeded the total for 2020. Last year, the NC Forest Service reported 2,302 fires and 7,829 acres.

These are the locations of all reported wildfires as of Nov. 30. Brown signifies fires that have been contained; the rest are listed as either active or reported. (Map: NC Forest Service)