agriculture, Environment

Environmental justice groups reach settlement with DEQ over federal complaint, hog farms

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By allowing those facilities to operate with “grossly inadequate and outdated systems of controlling animal waste” the complaint alleged, there was an “unjustified disproportionate impact on the basis of race and national origin against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. Read more

Environment

Go Backstage: Delco, methyl bromide and how to make people care about somewhere they’ve never been

 

Cathy and Anthony Stafford opened Good Boy Hotdogs behind their home along Andrew Jackson Highway in Delco, population 348. (Photos: Lisa Sorg)

Go Backstage is an occasional series explaining to readers the process of reporting and writing stories. The purpose of the series is to help readers understand the nuances of journalism and to add transparency to the process. If you’d like to know how a previous environmental story was reported, and the decisions that went into it, contact me at lisa@ncpolicywatch.com.

For more information about tonight’s public hearing in Delco, scroll to the bottom of this story.

Raise your hand if you’ve spent any time in Delco, North Carolina.

I hadn’t either, except for cruising through as a roundabout way to get from Wilmington to Riegelwood. But this hamlet in eastern Columbus County, population 348, is now at the center of an environmental justice story.

As I reported yesterday, Malec Brothers Transport, an Australian company, wants to operate a fumigation facility using a highly toxic chemical methyl bromide to kill pests in logs bound for China.

(I resisted the temptation to suggest titling the story My Chemical Bromance.)

Half of people living within a mile of the proposed facility — the area includes the tiny town of Acme and the only slightly larger Riegelwood — are Black, Latinx or American Indian.

These are primarily low-income areas. A quarter of households in Columbus County are below the federal poverty threshold.

But as Ashley Niquetta Daniels, who grew up in the area, told me, Delco residents “are humble, hard-working, decent people. They deserve to have their voices heard.”

In a previous Go Backstage post, I noted that my stories are based on documents and people.  The challenge with Delco was that until I found Ashley via mutual friend on Facebook, I could find no one in the town who even knew the fumigation facility was in the works.

That’s often the case. In general, people don’t have the time to peruse the NC Department of Environmental Quality’s public hearings/comments list, which is how I learned about the proposal. People may not even know it exists. (Here’s the link for future reference.) After a long day at work, most folks wouldn’t have the energy to decipher arcane air permits. Cathy and Anthony Stafford, for example, are busy running a small business, Good Boy Hotdogs, behind their home.

This is the information gap the media and community leaders are supposed to fill.

Ashley Niquetta Daniels (Courtesy photo)

While I often curse Facebook for its privacy breaches, in this case, it led me to Ashley via former colleague Fiona Morgan of News Voices North Carolina. The nonprofit helps engage local communities and connect newsrooms with the public. Fiona tagged me in a video Ashley posted to get the word out about the fumigation facility. Now I had a community connection. Without Ashley — and Fiona — the story would have been less engaging.

As for the documents, correspondence in the permit applications often illuminates the conflict between the polluter and the regulator. For example, the exchange DEQ and Malec Brothers was particularly interesting because it contained bewildering information: Workers at the fumigation facility would seal off leaks from the shipping containers using “sandbags, duct tape, etc.,” which supposedly is the industry standard in Australia.

In addition to speaking with DEQ, I interviewed James Harris, the CEO of Malec Brothers’ US operations. He politely answered my questions. But it’s also my job to challenge his answers or to put them in context. When Harris said there had been two public hearings on the facility, he was being factual. But the truth and the facts aren’t necessarily the same.

Harris failed to mention that these hearings were part of the county’s planning board and board of adjustment meetings — to most folks, arcane governmental bodies that rarely draw large turnouts for much of anything. Those boards also meet in Whiteville, 28 miles from Delco, where there were no public meetings about the facility. This hardly qualifies as public outreach.

I pored through the relevant scientific literature and government reports. Through a serious of random online searches, I located a scientist in New Zealand who had published articles in peer-reviewed journals about the health effects of methyl bromide. Because of his schedule and the time difference — New Zealand is 16 hours ahead — I had to call him at 1 in the morning, my time. (My first question to him: “How is tomorrow?” His reply: “Wonderful.”)

Finally, the time came to write. The 2,500-word story took about eight or nine hours, including factchecking. Until the seventh hour, I had not interviewed Ashley, but had the rest of the story built. Ashley was assertive, informed and inspiring. That’s when I knew I had the piece I had hoped for.

 

 

 

Environment

DEQ announces members of new Environmental Justice & Equity Board

The Rev. Rodney Sadler led his colleagues on the NC DEQ Secretary’s Environmental Justice and Equity Advisory Board in a non-denominational prayer. (Photo: Lisa Sorg)

Over six tense weeks in the fall of 1982, 550 people were arrested in Warren County, some of them after lying in front of dump trucks loaded with PCB-laden soil bound for a landfill built by the State of North Carolina. With the full support, encouragement even, of then-Gov. Jim Hunt, the state had created the landfill in a largely Black neighborhood to dispose of PCBs, a known carcinogen, from the Ward Transformer site in Raleigh.

Those mass acts of civil disobedience launched the modern environmental justice movement. Yet it’s taken 36 years for a governor and an environmental secretary to create an advisory board to address the persistent problem of environmental injustice in North Carolina.

Cancer researcher and scientist Marian Johnson-Thompson is vice-chair of the Secretary’s Environmental Justice and Equity Advisory Board: “This panel is another great day for North Carolina,” she said. “Our state is serious about addressing the environmental needs of all North Carolinians.” Seated left to right in the back row: Yu Ying, Randee Haven O’Donnell and the Rev. Rodney Sadler Jr. Front row: NC DEQ Secretary Michael Regan (Photo: Lisa Sorg)

Department of Environmental Quality Secretary Michael Regan announced the membership of the Environmental Justice and Equity Advisory Board today. Its 16 members, inclusive of diverse racial, ethnic, gender and socio-economic backgrounds, plans to meet quarterly. Its charge is to advise Regan and DEQ on how to ensure all North Carolinians can enjoy clean air, water and land in their neighborhoods.

Since appointed by Gov. Cooper, Regan said his priority “has always been same — to redefine the agency’s purpose. It’s no secret that I wasn’t satisified with the mission we inherited. It downplayed the protection of people and no, it did not reflect my vision and the governor’s vision of inclusivity.”

Regan said the board reflects the agency’s new mission. “We are providing science-based environmental stewardship for the health and prosperity of all North Carolinians. Environmental fairness and equity for all is not just a soundbite, a feel-good exercise. It’s an achievable goal for all parts of our state. But we have some work to do.”

Regan explicitly mentioned coal ash, animal feeding operations, GenX and landfills as among the “very tough issues” affecting underserved communities.

However, no one on the board is from the communities affected by coal ash. Deborah Graham and Amy Brown, who live within a half-mile of coal ash ponds, said they were disappointed in the omission.

“How can you be our voice when you haven’t felt our pain?” Brown said. “Why wouldn’t you choose a real coal ash neighbor?”

Graham and Brown likened this board to the Science Advisory Board, which recently met, inexplicably, in Newton to discuss hexavalent chromium, a component of coal ash. In part, because Newton is not an affected coal ash community, few people attended the meeting and no one spoke publicly.

“We could have gotten people out,” Graham said. “Apparently our voice is not being heard.”

The environmental justice issues facing North Carolina range from the mountains to the coast: wood pellet plants, Superfund sites, the proposed fumigation facility that would emit highly toxic methyl bromide in Delco; the Atlantic Coast Pipeline in eastern North Carolina and the Mountain Valley Pipeline, which was just announced for the Piedmont.

The board’s membership includes academics, such as chairperson James Johnson Jr., a UNC professor who studies sustainable communities, as well as scientists, including Marian Johnson-Thompson, a cancer researcher, microbiologist and educator.

Nonprofits also are well-represented. Jamie Cole is the Environmental Justice, Air, and Materials policy manager at the NC Conservation Network. Naeema Muhammad of the NC Environmental Justice Network is a driving force behind the protection of neighbors of industrialized hog farms.

Vice-Chairperson Marian Johnson-Thompson said she hoped the board will “serve as a model for other states’ approaches to addressing environmental justice.”

“We’re put here on this earth to live and to take care of it,” said board member Jeff Anstead of the Haliwa-Saponi Indian tribe. “That’s our job.”

Chairperson James Johnson Jr., UNC professor, Chapel Hill
Vice-Chairperson Marian Johnson-Thompson, cancer researcher and educator, Durham
Danelle Lobdell, an epidemiologist from Chapel Hill
Naeema Muhammed, of the NC Environmental Justice Network, Rocky Mount
Jamie Cole, of the NC Conservation Network, Raleigh
Susan Jakes, an NC State researcher of childhood obesity, Raleigh
Randee Haven O’Donnell, science teacher and alderwoman, Carrboro
Angela Esteva, an executive at akta Pharmaceutical Development, Cary
Jeff Anstead, Environmental Justice Committee Chair of NC Indian Affairs Commission, Warrenton
Joseph Owle, Eastern Band of Cherokee Indians, Cherokee
The Rev. Rodney Sadler Jr., professor at Union Presbyterian Seminary, Charlotte
William Barber III, UNC environmental law student, Durham
Marilyn Marsh-Robinson, of the Environmental Defense Fund, Knightdale
Mercedes Hernandez-Pelletier, Child and Family Health Manager, East Coast Migrant Head Start Project
Veronica Carter, board of directors, NC Coastal Federation, Leland
Yu Yang, senior engineer, ?Höganäs Environment Solutions, Cary

agriculture, Commentary, Courts & the Law, Environment

Analysis: Besides the money, why the plaintiffs’ win over the hog industry is so historic

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

For an industry used to getting its way, the jury’s verdict was a stunning rebuke.

On Thursday in federal court, the jury awarded 10 plaintiffs who live adjacent to an industrialized hog farm $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount, assessed against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

Kinlaw was not the defendant; the hogs are owned by Murphy-Brown/Smithfield, and Kinlaw is responsible for raising them, but every other part of the farm’s operation is dictated by the company.

Because of a state law capping damages a jury can award, the breathtaking figure might not survive a legal challenge and could be reduced. But for the residents — most of them, related — of Pearl Lloyd Road in rural Bladen County, the judgment carries not only tangible benefits but also symbolic ones.

The case pitted North Carolina’s behemoth hog industry — the second-largest in the nation — against working-class, rural Black families. Murphy-Brown/Smithfield wields enormous power: in the legislature, in local governments, in politics, even at universities. But one place where the hog industry is on slippery footing is before a jury. Because jurors can look at a tornado of buzzards circling a dead box, can view photos of hogs wading in their own feces and urine, can listen to the dispassionate scientific testimony and the passionate narrative of the plaintiffs. Jurors can evaluate the evidence — and they can empathize.

The $50m judgment carries not only tangible benefits but also symbolic ones Click To Tweet

For years, the plaintiffs testified, life next to Kinlaw Farms has been hellacious: Acrid odor from the lagoons and the manure spray fields barges into their yards and homes. Flies swarm, and buzzards loiter in their yards, waiting to feast on hog carcasses in the farm’s dead box. Scientists found DNA from hogs’ fecal bacteria on the side of their homes. All of this, they testified — and photos shown the jury from inside the filthy barns amplfied the point — harmed their property values and eroded their quality of life.

Murphy-Brown/Smithfield, the plaintiffs’ attorneys argued, has the money — $452 million in operating profits — to upgrade their farms’ lagoon systems to reduce the odor and the nuisance, but have chosen to take the cheaper way out.

The jury agreed. But the 10-person panel could have stopped there, awarding merely compensatory damages for quality-of-life issues. Instead, jurors determined that the evidence met a higher threshold. To award punitive damages, jurors had to find that the company “committed fraud, or acted with malice, or engaged in willful or wanton conduct” — which indicates how appalled they were. Read more

agriculture, Courts & the Law, Environment

Jury awards plaintiffs more than $50 million in historic hog nuisance lawsuit

This is a developing story and will be updated tomorrow.
This post has been updated with more information about the law regarding punitive damages.

A jury deliberated for less than two days before awarding 10 plaintiffs $50 million in a hog nuisance lawsuit against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

According to the verdict sheet, the jury unanimously agreed that Murphy-Brown, which owns the hogs at Kinlaw Farms in  Bladen County, “substantially and unreasonably interfered with the plaintiff’s use and enjoyment of their property.” The jury awarded each of the plaintiffs $75,000 on those grounds. But the jury also had the latitude to award punitive damages. They did so: $5 million for each plaintiff. In sum, the plaintiffs, ranging in age from their teens to 85, were awarded a total of $50.7 million.

“We are pleased with the verdict,” said Mona Lisa Wallace of Wallace and Graham law firm in Salisbury, in a prepared statement. The firm represented the plaintiffs, and Michael Kaeske argued the case.  “These cases are about North Carolina family property rights and a clean environment.  I am grateful for the hard work of our co-counsel, Mike Kaeske, and the others who worked on this trial.  We are now preparing for the next which is scheduled for the end of May.”

At least a half-dozen more trials related to nuisances from industrialized hog farms are scheduled through the fall.

Smithfield Foods, a $15 billion global food company, issued a statement in response to the verdict, which the company said it will appeal to the Fourth Circuit Court. Here it is in full:

“We are extremely disappointed by the verdict. We will appeal to the Fourth Circuit, and we are confident we will prevail. We believe the outcome would have been different if the court had allowed the jury to (1) visit the plaintiffs’ properties and the Kinlaw farm and (2) hear additional vital evidence, especially the results of our expert’s odor-monitoring tests.

These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms. These farmers are apparently not safe from attack even if they fully comply with all federal, state and local laws and regulations. The lawsuits are a serious threat to a major industry, to North Carolina’s entire economy and to the jobs and livelihoods of tens of thousands of North Carolinians.

From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine. Plaintiffs’ original lawyers promised potential plaintiffs a big payday. Those lawyers were condemned by a North Carolina state court for unethical practices. Plaintiffs’ counsel at trial relied heavily on anti-agriculture, anti-corporate rhetoric rather than the real facts in the case. These practices are abuses of our legal system, and we will continue to fight them.”

The original jury pool of 40 or so people was roughly 50 percent Black. But after Smithfield attorneys finished their challenges to the jurors, the final 10-person panel was predominantly white. (A 12th juror, also white, became ill early in the trial and could not continue serving; another juror was excused because they knew one of the witnesses..) All of the plaintiffs are Black. Most are related and live in modest homes adjacent to Kinlaw Farms, which raises 15,000 hogs owned by Murphy-Brown/Smithfield Foods. Next door, Don Butler, a retired corporate executive for Murphy-Brown/Smithfield lives on a palatial estate where he raises horses. (This is a different Don Butler than the one that worked for Murphy-Brown.)

Attorney Mark Anderson, who represented Murphy-Brown, cited state law that caps the amount of punitive damages. He said that punitives can’t be more than three times the compensatory damages — in this case, $225,000 per plaintiff — or $250,000, whichever is higher. If the jury awards more than that amount, the trial court is supposed to reduce the award to the maximum amount.

However, Michelle Nowlin, clinical professor of law and supervising attorney for the Environmental Law and Policy Clinic at Duke University, said the standards could be different because this trial was held in federal court, not state court. But if the ratio of compensatory to punitive damages is more than 1 to 10, then the award could be reviewed; the extra damages aren’t prohibited, but do receive additional scruinty. If that standard applies in this case, the punitive awards could be capped at $750,000 per plaintiff.

Update: Nowlin later added that the state statute does apply. Some other states have found caps to be unconstitutional, but North Carolina is not one of them. In other states, judges have the discretion to uphold a jury’s award, as long as the judge determines the award is not “excessive.” In North Carolina, though, the judge does not have this discretion.

The state statue also prohibits the attorneys and the court from informing the jury of the cap on punitive damages.

Nowlin was not involved in the case, but is an expert in agricultural law and policy, and led the Southern Environmental Law Center’s Hog Industry Project.

Nonetheless,, Nowlin wrote in an email. “to award any punitive damages, the jury was required to find that the company committed fraud, or acted with malice, or engaged in willful or wanton conduct.”

“This is a significant victory for the community members who live next to these factory feedlots,” she said in a written statement. “They have suffered indescribable insults, not just from the immediate impacts of the feedlots themselves, but also from decades of government failure to come to their aid. Litigation was their last chance for justice, and this verdict and award will help them move forward.”