EPA Office of Civil Rights investigating intimidation claims against DEQ

EPA Office of Civil Rights investigating intimidation claims against DEQ

- in Environment, Featured Articles
pig-photo-by-michael-loudon-creativecommons
Photo by Michael Loudon, published under Creative Commons license.

Attorneys for several environmental justice groups have asked the EPA’s Office of Civil Rights to investigate a complaint that state environmental officials and the pork lobby tried to intimidate them at a confidential mediation session earlier this year.

This is further evidence of DEQ’s inability to unwillingness to address civil rights complaints,” the letter, dated July 11, read. It asks the EPA to “ensure that members of the public are able to raise those concerns safely.”

The letter was sent by the NC Environmental Justice Network, REACH (Rural Empowerment Association for Community Help) — both citizens’ groups based in eastern North Carolina — and the Waterkeeper Alliance, a national group with state affiliates.

It’s publicly known that talks between the environmental justice groups and DEQ broke down after the NC Pork Council and the National Pork Producers Council crashed a scheduled mediation session in January. But what’s less known is the hubris of special interests and NC DEQ that led to the intrusion.

The NC Department of Environmental Quality didn’t respond to requests for comment.

*** Update: The Pork Council provided these statements Wednesday afternoon:

Statement From Deborah Johnson, CEO, NC Pork Council:
“The NC Pork Council sought to sit down and talk in good faith with Earthjustice and others at the mediation session. Our goal was to cooperate, not intimidate, because the resolution of this complaint will have a direct impact on thousands of people – black, white and Hispanic – whose lives and livelihoods are tied to the pork industry. We wanted to hear their concerns and work with them. But they refused to allow us a seat at the table.

“We stand ready to meet with people who have sincere concerns and are willing to work together. Clearly, these groups are not.”

Facts About The Mediation Session:

When the NC Pork Council filed a motion to intervene in December 2015, we expressed our interest in participating in the upcoming mediation because the resolution of the complaint will impact North Carolina pork producers. Our interest was well known and documented.

When the NC Pork Council did not receive an answer from the mediator about our request to participate, we showed up in hopes that we would be allowed to participate. When the mediator told us we could not participate, we left. If we had been told beforehand that the NC Pork Council would not be allowed to participate, we would have never come to the mediation.

Marianne Lado, an attorney with the environmental law firm, Earthjustice, which is co-representing the justice groups, told NCPW that because DEQ receives federal funds, it is the focus of the civil rights intimidation complaint. “That’s not to let the [pork] councils off the hook,” Lado said. “The experience has given us some insight into the cozy relationship between the industry and DEQ.”

***

The original complaint, filed in 2014, focused on DEQ’s revised general permitting requirements for swine waste operations. Those requirements still allowed the state’s 2,000 hog farms to spray swine waste on fields within just 100 feet from a drinking water well. Nor do the permits require farmers to monitor groundwater for seepage from the mass burial of animals. The general permits, justice groups say, allow hog farms to legally damage the environment and disproportionately harm minority communities.

The EPA agreed to investigate the complaint in February 2015. The next month, environmental justice groups agreed to mediation with DEQ; a mediator appointed by EPA would oversee the proceedings. Also known as Alternate Dispute Resolution, mediation is confidential, both in its content and in the fact that it’s happening. Confidentiality can be broken only if all mediation parties agree.

Environmental justice groups and the DEQ had both agreed to keep the talks confidential until at least after the first meeting, when the terms were to be discussed, according to the complaint to the Office of Civil Rights.

But documents show that on Dec. 18, 2015, three weeks before the initial talks were to occur, attorneys for the Pork Council and the Producers Council filed papers with the EPA to intervene in the mediation. Representatives for the pork industry wrote that they “seek and intend to participate in the upcoming mediation and any further proceedings that OCR may conduct in connection with the complaint against NCDEQ.”

The environmental groups say neither they nor the mediator disclosed that the talks were scheduled. That leaves DEQ as the most likely source of the leak.

In early January, attorneys for the environmental groups vehemently objected, stating they did not want the pork lobby to participate in mediation; nor did the industry have legal standing to do so. “The Pork Councils have no seat at the table,” a letter to the EPA and the pork councils’ attorneys read.

In response, on Jan. 7, the pork councils again wrote to the EPA, insisting that they be allowed to participate in mediation.

Yet, on Jan. 13, 2016, members of the environmental justice groups arrived at the mediation to find that five representatives from the pork industry — three of them attorneys for Charlotte and Washington, D.C. — were already at the UNC Center for Civil Rights in Chapel Hill, where the talks were to be held.

DEQ officials were already there, as well, and “admonished” the environmental groups about opposing their participation,” according to the complaint. DEQ also “argued that the Pork Councils should be included in the mediation session.”

Naeema Muhammad, acting director of the NC Environmental Justice Network, stated in a deposition — under oath — that “this didn’t make me feel good to know that they were there. They could have been writing down all of our [license] tag numbers. I felt exposed and that other community representatives were exposed.”

Lado said she couldn’t speculate on whether DEQ told the pork councils about the mediation, but added that the agency “tried to normalize the problem and suggest that it was acceptable for pork councils to be there. [DEQ] didn’t act surprised that they were there.”

Attorneys for the environmental groups asked the pork industry representatives to leave the building, but instead they stayed in the hallway near the mediation room during the talks.

On Jan. 15, a day after the mediation ended, the EPA’s Office of Civil Rights sent a letter denying the pork lobby’s request to participate and emphasizing both DEQ and the environmental justice groups would have to agree to it: “It is up to the complainants and NC DEQ to decide jointly, in consultation with the mediator whether other participants are needed.”

In a further demonstration of hubris, about a month after mediation, on Feb. 19, attorneys for the pork industry wrote to the EPA, saying they were dismayed they were not allowed to participate. The letter stated that DEQ supported their participation, and that no one from the EPA, nor the mediator said that the pork councils could not attend.

The Councils arrived well before the scheduled start time, traveled substantial distances to attend” the letter read, “demonstrating the Councils’ good faith commitment to participating in the mediations.” The correspondence went on to say the councils were “puzzled as to why environmental groups remain opposed” to their “good-faith participation.”

Lado and her fellow attorneys told the EPA that the “surprise intrusion” created “fear and uncertainty” among the groups involved in mediation. That’s because there is a long history of these sorts of tactics by the pork industry, particularly in eastern North Carolina. In several depositions, African-Americans who live near hog farms describe not only the environmental hazards created by their hog-farming neighbors — including contaminated drinking water — but repeated threats by them.

Elsie Herring lives on land her family has owned since 1891. When a nearby hog farmer sprayed swine waste on a field adjacent to her home, it blew onto her house. After the farmer refused to stop spraying, Herring said she complained to more than 10 government officials. But that didn’t deter the farmer. Instead, she said, the Duplin County attorney sent her letter saying if she continued to make “groundless complaints” that she could be sued or go to jail.

Herring also alleged that a hog farmer waved a stick at her, and that the farmer’s son came to her house with a gun. The son also entered her mother’s house, “uninvited and shook the chair that my mother was sitting in and started cursing at her.

At the time my mother was 98 years old, so needless to say, this was traumatic for her and my family.”

Violet Branch of Duplin County, who lives within two miles of 10 hog facilities, said that a state agency told her to stop drinking the water from her well. (She’s now on a public water system.) Soon after, a nearby farmer came to her home “with their industry spokesperson and asked me a lot of questions as if they weren’t trying to make it seem like I was out to get the hog farmer. This upset me a great deal. I think that the farmers were trying to intimidate me.” The industry spokesperson, Branch added, “asked me if I have ever thought about moving.” She has lived on the land since 1943.

The EPA has agreed to investigate the allegations about the mediation session. Under federal law, it is illegal for any group or person to intimidate, threaten or discriminate against someone because he or she has filed a civil rights complaint. (However, it’s unlikely that the EPA’s Office of Civil Rights will find in favor of the environmental groups. As the Center for Public Integrity reported last year, that office has determined just one finding of discrimination — from hundreds filed — in 22 years. Later this week, the U.S. Commission on Civil Rights is scheduled to issue a report on whether the EPA has complied with its environmental justice obligations.)

Lado said even though the EPA didn’t notify the pork councils they couldn’t participate until after mediation had ended, her clients had made it abundantly clear the pork industry was unwelcome at mediation. “There was no reason they should have felt they had the right to be there,” she said. “What would cause people to come to a meeting where they’re not invited and not tell them that they’re going to show up. That’s way out of bounds.”