Sen. Berger announces appointments to Ag, Enviro committees, responsible for Farm Act, other key measures

Sen. Brent Jackson, a farmer, will co-chair that chamber’s Agriculture, Energy and Environment committee (Photo: NCGA)

Norm Sanderson, Brent Jackson and Chuck Edwards will lead the Senate Agriculture, Energy and Environment Committee this year, Sen. Pro Tem Phil Berger announced today.

The 14-member committee includes eight Republicans and six Democrats. The Farm Act, clean energy legislation, environmental bills and regulatory reform measures pass through this committee. For example, the committee took up part of a 2019 bill that would have allowed local governments to dump toxic electronics in landfills; it failed. While under GOP leadership, the committee has previously supported relaxing regulations on hog farms  and opposed oversight of the proliferation of poultry operations, most of which operate essentially unchecked.

Republicans: Lisa Stone Barnes, Jim Burgin, David Craven, Steve Jarvis, Tom McInnis, Paul Newton, Dean Proctor and Bob Steinburg

Democrats: Don Davis, Toby Fitch, Michael Garrett, Jeff Jackson, Natalie Murdock and DeAndrea Salvador

Berger also appointed members to the Appropriations on Agriculture, Environment, and Natural Resources, which oversees budget recommendations in those areas. That includes the NC Department of Environmental Quality, whose budget lawmakers have decimated over the past decade.

Republicans: Chairmen Norman Sanderson, Todd Johnson and Chuck Edwards; members Lisa Stone Barnes, Tom McInnis and Paul Newton,

Democrats: Natasha Marcus, Julie Mayfield, Mujtaba Mohammed, and DeAndrea Salvador

DEQ approves air permit for Align RNG biogas facility, but hog farms will need approvals

 

The blue circles represent farms closes to the pipeline route, represented by the orange line; however, these farms have not been confirmed as participating in the project. The black circles show the location of confirmed farms. (Base map and pipeline route, November 2019: 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 has approved a controversial air permit for a proposed biogas gathering and processing facility in Turkey, on the Sampson and Duplin county line. However, the Align RNG facility, co-owned by Smithfield Foods and Dominion Energy, will not process biogas until the participating hog farms receive the required permits, DEQ announced today.

Key details of the $30 million proposal, billed as the largest swine waste-to-energy project in North Carolina, have been kept secret, even from state regulators. Although capturing methane, a potent greenhouse gas and driver of climate change, is important, the Align RNG project is not completely “clean.” A central gas collection facility on the Duplin-Sampson county line would emit more than 60 tons of pollution each year, according to documents submitted to the Division of Air Quality.

Nineteen farms, only four of which have been named, would each cover one of their lagoons and install an anaerobic digester to capture the methane, then funnel the gas to a 30-mile long pipeline to the Align RNG station. The gas would be conditioned at the station to be injected into an existing Piedmont Energy natural gas pipeline. While some methane will be captured from the farms, they would still use open lagoons to contain excess waste and would use spray it on their fields, as they have done for decades.

According to a DEQ press release, the air permit contains additional requirements, based on public comments;

  • Hourly monitoring of the tail gas flow and hydrogen sulfide concentration entering the “iron sponge” sulfur removal control device
  • Daily record-keeping of the sulfur dioxide emissions from the flares
  • An increased frequency of the analysis of the hydrogen sulfide concentration entering the facility to a monthly basis to account for potential seasonal variations
  • Specifies the maximum biogas flow limit for the facility
  • Requires an inspection, maintenance, and calibration plan for the facility’s air pollution control equipment and monitors to be submitted to DAQ for approval.

Any swine farm choosing to participate in the biogas project is required to submit a permit application to the Division of Water Resources. “DWR will thoroughly review each application for permit modification on a case-by-case basis and the issuance of this air permit does not indicate the outcome of the DWR permit processes.”

The Southern Environmental Law Center issued a statement Jan. 7 opposing DEQ’s approval:

“We are disappointed in DEQ’s decision to issue an air permit for Smithfield and Dominion’s biogas facility without considering the cumulative harm of this project to our air and water and nearby communities that are disproportionately Black and Brown,” said attorney Blakely Hildebrand. “Moreover, DEQ issued this permit without complete information from Smithfield and Dominion as to what their industrial project entails. We hope DEQ will listen to community members later this month at its hearing on water permits for just four of the 19 industrial-scale hog operations that are part of this biogas project.”

The Southern Environmental Law Center submitted comments on the draft permit to DEQ that are available at https://www.southernenvironment.org/uploads/words_docs/2020-11-20_-_SELC_Align_RNG_Updated_Permit_Comments_and_Exhibits_1-10.pdf

On Jan. 26, the Division of Water Resources will hold a public meeting on the four swine farms that are seeking modifications to their operating permits in order to participate in the Align RNG project. DWR is also currently accepting comment on those proposed permit modifications.  Additional information on how to participate in the meeting and register to speak is available here https://deq.nc.gov/news/events/swine-biogas-public-meeting.

DEQ to Align RNG: Tell us the location of the hog farms in biogas project

The blue circles represent farms closes to the pipeline route, reprsented by the orange line; however, these farms have not been confirmed as participating in the project. The black circles show the location of confirmed farms. The map is dated November 2019. (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 is pressing Align RNG, a partnership between Smithfield Foods and Dominion Energy, to reveal the locations of hog farms involved in the largest biogas project in the state.

The Division of Air Quality sent a letter dated Dec. 8 to Align RNG with a series of questions about the farms, potential emissions, as well as other information about the project, none of which the company so far has been willing to make public.

As Policy Watch previously reported, Align RNG has refused to disclose the names and locations of 15 of the 19 farms, making it difficult if not impossible to determine the environmental impact of the proposal. While the company has published a general pipeline route as part of its air permit application, the map is a year old and contains no detail.

The four farms that Align RNG did disclose are corporately owned by Murphy-Brown/Smithfield.

According to Align RNG, the 19 participating farms would capture methane in anaerobic digesters — essentially covered lagoons that breakdown gases without oxygen. The biogas would then be transported through 30 miles of low-pressure gathering lines to a facility on the Duplin-Sampson county line between Turkey and Warsaw on NC Highway 24. From there, Align RNG would upgrade the quality of the gas and inject it into an existing pipeline operated by Piedmont Natural Gas Company.

State environmental officials want the additional information so they can determine whether emissions from the farms should be regulated, and if those gases “may cause community impacts such as odor.”

Division of Air Quality officials also requested emissions estimates of methane, ammonia and hydrogen sulfide from the digesters and covered lagoons, including leaks and fugitive emissions on a site-by site bases. The letter also asks Align RNG to provide current emission estimates of these gases at each of the existing 19 farms and compare them to projected emissions.

The agency also wants to know details on property easements for the pipeline. Participating farms could be as far as 20 miles away from the main facility.

The farms would also be equipped with emergency flares, which would vent gas in case of a system shutdown. The Division of Air Quality also asked Align RNG to defend their assertion that there would be “no excess gas” emitted from the farms.

At a recent public hearing, several commenters said emissions from the farms should be included with those released from the main BF Grady upgrading facility, and considered as one project. If the Division of Air Quality agrees, the air permit could be classified as a Title V, reserved for projects with the highest potential emissions.

It’s unclear why Align RNG has not disclosed the locations of the farms. In an email sent last month, Policy Watch asked Aaron Ruby, a Dominion spokesman, about the site locations; he did not answer the question.

The US Army Corps of Engineers is also keeping that information secret; the Corps is involved in the project because the pipeline could cross or pass near wetlands and streams.

However, the Corps redacted precise latitude and longitude coordinates from public documents. A Corps spokeswoman told Policy Watch the information was not public because of homeland security reasons. Similarly, the Corps sent a letter to the Southern Environmental Law Center, which also requested location information, stating that public release of detailed location data is exempt under the Freedom of Information Act.

The disclosure could allow “terrorists or other criminal elements to locate the pipeline with precessions and assess those areas where the pipeline may be most vulnerable or where an attack on the pipeline could be expected to cause the most environmental damage and greatest imperil to human life and safety.”

Policy Watch noted to the Corps that the pipeline would be marked with above-ground signage to prevent unintentional breaches if the area is excavated. It also unclear if the pipeline route has been finalized.

According to public documents, Align RNG wanted to begin construction last February and through a consultant tried to convince the Corps to fastback the project. The Corps declined. No has construction begun, a DEQ spokesman said today, and no erosion/sedimentation permits have been issued for such activity.

Since the farms would still have lagoons and spray fields to dispose of leftover feces and urine, opponents of the project say it merely adds to the companies’ profits while failing to benefit the communities.

At a recent public hearing, economic development officials from Duplin and Sampson counties extolled Align RNG’s $300 million to $375 million investment in the project, which would add to area tax revenues. However, local workers would not directly benefit: Only 2.5 permanent positions would be created, in addition to 25-30 temporary construction jobs, according to documents filed with DEQ.

In damning opinion, federal appeals court rules against Murphy-Brown in hog nuisance suits

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)

Punitive damages will be recalculated, but court sides with plaintiffs on all other arguments 

This is a developing story.

Update 6:25 p.m.: Smithfield issued a statement saying they have “resolved these cases through a settlement that will take into account the divided decision of the court. Information about the terms of the settlement will not be disclosed.”

Murphy-Brown lost nearly every legal argument it posed before the Fourth Circuit Court of Appeals, which, in a damning opinion issued this afternoon reaffirmed a jury verdict awarding monetary damages to 10 neighbors who had filed nuisance suits against the world’s largest pork producer.

After 10 months since the oral arguments, the Fourth Circuit affirmed a decision issued by the District Court that Murphy-Brown’s operation of its industrialized hog operations — open lagoon and spray field systems, “dead boxes” and all-hours truck traffic — unduly harmed neighbors’ quality of life. The only point that Murphy-Brown prevailed on was the role of executive salaries and parent company profits in calculating punitive damages.

The case centered on neighbors of the Kinlaw Farm in Bladen County, a contract grower for Murphy-Brown/Smithfield Foods. However, the suit was filed in 2018 against Murphy-Brown, which controls every aspect of the farm, from the type and amount of feed, to the number of hogs raised, to the lagoon-and-sprayfield waste management systems.

After more than two weeks of hearing testimony, a jury awarded each plaintiff  $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount.

Punitive damages can be awarded if a jury finds a defendant “committed fraud,”  “acted in malice” or in “wanton neglect.”

There will be no new trial, the appellate court ruled, only a rehearing on the amount of punitive damages that can be awarded to neighbors without considering the parent company or executives’ financial information. Compensatory damages are unaffected.

At the district court level, the neighbors were represented by Wallace & Graham, based in Salisbury, who had hired Michael Kaeske of Texas to argue the case. McGuireWoods in Richmond, Va., represented Murphy-Brown.

In the 144-page opinion, appeals court judges disarmed Murphy-Brown’s many defenses, including its major points:

  • Murphy-Brown had tried to reel in Kinlaw Farms as a responsible party, even though the pork producer dictates the terms of the operation. Had Murphy-Brown succeeded in its argument, the company could have further buttressed its claim that the nuisances suits, of which there are dozens, harmed family farmers. In fact, Murphy-Brown is responsible for the damages.
  • The company had claimed that the Right to Farm Act of 2017, which sharply limited the amount of damages neighbors could recover in case they won in court, was retroactive. (Gov. Cooper vetoed the bill, but lawmakers overrode it.) By the time that legislation was enacted, dozens of nuisance suits had been filed in federal court against the company. Even though the text of the bill said it would be effective when it “became law and after that date,” Murphy-Brown and several lawmakers said it merely “clarified” previous farm acts and should apply retroactively.
    Original bill language did say it should apply retroactively, but was removed over concerns it could not pass constitutional muster.
    The appellate court disagreed, saying “we have nothing to conclude that the 2017 Right to Farm Act amendments should apply retroactively. … If made retroactive it would reward powerful defendants who faced with a possible judgment against them could escape responsibility by raising a specter of doubt about something the state’s courts have long made available.”
  • Murphy-Brown also lost its claim that the expert testimony of Shane Rogers should be struck. Rogers is an environmental engineer who testified that hog feces had been found on neighbors’ homes. He based these findings on Pig2Bac, a technology that can determine the fingerprint of fecal material. Although the technology had not been peer-reviewed, the court said that fact was only one consideration of its reliability.

The court also found that Murphy-Brown knew that its farms were causing problems for the neighbors, even without formal complaints. “Murphy-Brown’s own collection of media articles reporting conditions associated with its farming practices and policies, as well as its knowledge of studies detailing the effects of lagoon and spray field operations and types of effective remediation,” showed that the company was fully aware of the odor, flies, buzzards and truck traffic. “Yet despite this knowledge,” the court wrote, Murphy-Brown “persisted in practices it knew were reasonably likely to result in injury to neighboring properties.”

Nor did the court buy the company’s argument that the Kinlaw farm operated legally and with required permits, and thus should not be found liable for nuisance. “This is beside the point,” the court wrote. “Lawful enterprises can constitute a nuisance ….”

During the trial, Murphy-Brown executives testified that the company had taken steps to reduce impacts on neighbors. This included changing the type of feed to decrease odors from the manure. However, the court determined that these steps “were motivated by profit or efficiency of operations as oppose to concern for neighbors. … The fact that Murphy-Brown policies expressly encouraged growers to avoid spraying at times neighbors were known to be outside demonstrates that [the company] knew its spray field operation was still likely to interfere with use and enjoyment of their property.”

The neighbors, wrote the court, “presented clear and convincing  evidence that Murphy-Brown knew about the likely harms, denied their existence and fought for them not to come to light.”

Farmworkers’ wages threatened by Trump administration’s inaction 

The middle of a pandemic is a particularly challenging time for low-wage workers to take a pay cut, but the 205,000 farmworkers across the country could face that dire situation next year. 

The U.S. Department of Agriculture abruptly decided to cancel its annual survey of farmworker wages, throwing 2021 wage rates for both H-2A temporary foreign workers and their U.S. counterparts into uncertainty — and farmworkers and advocates are scrambling.  The survey is used to set what is called the Adverse Effect Wage Rate, or AEWR, that growers must pay to the  H-2A workers and to any U.S. workers performing the same job. 

The Adverse Effect Wage Rate is designed to prevent agricultural employers from being incentivized to hire foreign labor at lower wages, to the detriment of local workers. Te AEWR is set annually for each state based on the USDA survey. North Carolina’s hourly rate is $12.67 — ranking 34th among all states. (The rates for the Southeast and Deep South are much lower than much of the US; North Carolina is first among those states, tied with Virginia.) 

 Over the years, there have been many attempts, legislative and administrative, to reduce the AEWR or allow growers to pay lower wages in some other way. It’s possible that H-2A workers could see their pay cut to the federal minimum wage of just $7.25 an hour; North Carolina’s minimum is the same as the federal rate.

Scuttling the wage survey is the latest maneuver to placate the agricultural industry at the expense of the workers who put food on our tables.