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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.

Federal court strikes down NC law that barred farmworkers from seeking union representation via lawsuit settlements

A federal district court judge on Wednesday entered a permanent injunction against a provision from the North Carolina Farm Act of 2017 that invalidated lawsuit settlements in which parties agree to recognize union representation of farmworkers as part of the agreement. The challenged provision was passed by the General Assembly and signed into law by Gov. Roy Cooper in July of 2017 as part of an omnibus 24-page bill.

Farmworkers and civil rights groups announced a federal lawsuit outside the legislature in 2017. (Photo by Carol Brooke)

Advocacy groups filed suit challenging the anti-union provision in the U.S. District Court for the Middle District of North Carolina in November of 2017 on behalf of two farmworkers and the state’s only farmworker union, the Farm Labor Organizing Committee (FLOC).

[Note: NC Justice Center, the parent organization of Policy Watch, was among the organizations and law firms representing the plaintiffs in the suit.]

Plaintiffs claimed that FLOC had been deprived by the law of at least one opportunity to “assist members who have potential employment claims to negotiate with their employer for a prefiling settlement of such claims.”

In the complaint, counsel for the plaintiffs argued that the ban on making union representation a part of settlements strips farmworkers from securing settlement terms in their best interest, a right enjoyed by other private sector employees.

In reviewing and approving the decision of the Magistrate Judge to which the case was initially assigned, U.S. District Court Judge Loretta Biggs previously held that the challenged provision violates the First Amendment and first-amendment-related protections of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On Wednesday, she permanently enjoined the state from seeking to enforce it.

The plaintiffs argued that the law not only infringed on workers’ First Amendment rights to form and participate in in unions, but it also violated the Equal Protection Clause of the Fourteenth Amendment, as most of the state’s farm workers are Latino.

“We continue to believe this law was crafted to block farmworkers from fighting for these rights with the help of the Farm Labor Organizing Committee negotiating on their behalf,” said Julia Solórzano, a staff attorney with the Southern Poverty Law Center’s Immigrant Justice Project representing the plaintiffs, in a press release. “These efforts to undermine the rights of these workers must not stand, and we will fight until they are defeated.”

The suit also challenged another portion of the law that prohibits agricultural producers from entering voluntary enforceable agreements to deduct union dues from farmworkers’ paychecks.

Despite striking down the settlement provision as unconstitutional, Judge Biggs, allowed the dues checkoff ban to remain in place.

As Policy Watch previously reported, many farmworkers in North Carolina are present in the state on a temporary visa for guest workers and don’t have credit cards or access to U.S. bank accounts, hence few other means to pay for union dues other than relying on dues transfer arrangements.

Plaintiffs are appealing the portion of the decision that upheld the dues checkoff provision to the Fourth Circuit Court of Appeals in Richmond, Va.

“We are confident that the Fourth Circuit will determine that farmworkers are entitled to the same rights as other North Carolina workers to freely choose for themselves whether to have union dues deducted from their paychecks,”  legal director for the ACLU of N.C. Kristi Graunke said in the press release.

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