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EPA to NC DEQ: “Grave concerns” about swine industry’s intimidation of minority residents

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Hog Lagoon in North Carolina (Photo:DELMO/Creative Commons)

Last October, about 20 people from North Carolina’s hog country — working-class, African-American, ordinary people — drove 300 miles to Washington, D.C., to tell their story. At two meetings, one with the EPA and another with several members of Congress and staff, these ordinary people described their very unordinary lives near industrialized hog farms.

About the stench and the flies that make it impossible to go outside on a beautiful summer evening. Their breathing problems and depressed property values. About the liquid hog manure that drifts from the spray fields and settles in their yards and on their porches.

They also told federal officials about the intimidation, the threat of physical violence they felt from some hog farmers — a consequence of the residents’ outspokenness. That the NC Department of Environmental Quality has done little, if anything to help these communities, and that at times, it had even worked at cross purposes to them.

“They couldn’t imagine what it was like,” said Devon Hall of the federal officials. Hall is executive director of REACH, (Rural Empowerment Association for Community Help [2]) in Warsaw, in Duplin County. “You can’t, unless you live here.”

Attorneys for REACH, the Waterkeeper Alliance a [3]nd the NC Environmental Justice Network [4]filed a federal civil rights complaint [5] about the state’s swine lagoon permitting process more than two years ago. But the people’s in-person stories — and the thousands of signatures on petitions — put faces to piles of of legal papers.

So compelling were the accounts that a month later, officials from the EPA’s Civil Rights Office arrived in eastern North Carolina and conducted interviews with more than 60 people living near the industrial swine operations. Sen. Cory Booker, a Democrat from New Jersey and a member of the Senate Environment and Public Works Committee, also toured the area and listened to residents.

Then last week, the EPA took an unprecedented step of sending DEQ an official Letter of Concern. Not only has DEQ failed to establish a legally required non-discrimination program, the EPA wrote, but it also has ignored witness accounts of the environmental and public health crises caused by the swine farms.

The EPA’s Civil Rights Office also wrote that it “has grave concerns about these reports indicating a potential hostile and intimidating environment for anyone seeking to provide relevant information to NC DEQ or EPA.”

DEQ spokeswoman Marla Sink said Jay Zimmerman, director of the Division of Water Resources, is “briefing the new administration as to what the letter entails and how we will respond.”

Letter to Complainants in Case #11R-14-R4 – Forwarding Letter of Concern to NC DEQ 1-12-2017 [6] by LisaSorg [7] on Scribd

At the core of the issue is that 20 years of ineffective state regulations have not corrected the imbalance of power: On one side of the scales is the politically powerful NC Pork Council, [8] which represents the wealthy major pork companies, such as Smithfield and Prestage. On the other side of the scales are the minority communities, environmental nonprofits, and even the many of the contract farmers themselves, who bear most of the financial and environmental risk and and comparatively few rewards of industrialized farming.

Residents had hoped for a firm decision from the EPA regarding the discrimination complaint. “It’s not a decision, just a letter of concern,” said Naeema Muhummad, Executive Director of the NC Environmental Justice Network, based in Rocky Mount. “In my mind had a decision been made, it would have been in favor of the community. It’s better that then nothing.”

Nonetheless, the agency’s pointed, harsh letter and its ongoing investigation — plus a new administration at DEQ — could tip the scales toward environmental justice.

“It’s a shame it took 20 years and a federal civil rights office for people to take notice,” said Elizabeth Haddix, senior staff attorney with the UNC Center for Civil Rights. [9] The center, along with EarthJustice, are representing REACH, the Waterkeeper Alliance and the NC Environmental Justice Network in the civil rights complaint filed in 2014 against DEQ. “But that’s what it took. That’s how powerful the organizers are. That’s the piece that’s amazing.”

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Timeline of the Civil Rights Complaints

  • Sept. 3, 2014: Earthjustice files complaint on behalf of citizens’ groups alleging discrimination based on race and national origin by DEQ. The complaint alleged the state’s renewal of the Swine Waste General Permit without adequate measures to control, dispose of and monitor animal waste subjects minority communities to discriminatory impacts.
  • Feb. 20, 2015: EPA opens an investigation into the complaint.
  • March 6, 2015: Citizens’ groups and their attorneys and DEQ enter into Alternative Dispute Resolution, funded by the EPA.
  • December 2015: Although the mediation is supposed to be confidential, DEQ tells the Pork Council that it’s happening. The Pork Council asks to attend; attorneys for the citizens’ group firmly tell DEQ the group is not invited.
  • January 2016: Pork Council representatives and DEQ show up for the mediation session against the attorneys’ explicit wishes. Mediation breaks down.
  • March 2016: Citizens and their attorneys withdraw from mediation.
  • May 5, 2016: EPA reinstates its investigation.
  • July 11, 2016: Citizens and attorneys file additional complaint alleging DEQ violated the EPA’s regulation prohibiting retaliation and intimidation of complainants.
  • Aug. 2, 2016: EPA says it will investigate the second complaint.
  • Sept. 2, 2016: DEQ requests that the original complaint be dismissed. The EPA declines to dismiss it.
  • Dec. 5, 2016: DEQ files another response.

Eighty percent of the hogs in North Carolina are owned by Smithfield or Prestage farms, leaders of the $60 billion pork industry. This gives the industry enormous power, through lobbying, for example, to convince state lawmakers and regulators to craft rules that favor them. However, the EPA’s letter details another tactic — intimidation — that the farmers contracted by these companies have used to squelch residents’ complaints.

The EPA’s letter gives credence to previous declarations the residents’ made under oath as part of the civil rights complaint. This includes the environmental and public health issues and the intimidation tactics by nearby hog farmers. “The accounts ranged from sustained tailgating, being yelled at, being threatened with guns and other physical violence, driving back and forth in front of the houses of residents who have complained,” the EPA’s letter read.

“Particularly egregious instances include a local swine facility operator entering the home of an elderly African-American woman and shaking the chair she sat in while threatening her and her family with physical violence if they continued to complain,” the letter went on.” “Those interviewed stated that these are regular events, creating a climate where residents believe that if they file an environmental complaint with DEQ, they will likely be retaliated against by neighboring swine facility operators or employees.”

Naeema Muhummad told NCPW that the EPA took those complaints seriously. “It felt good,” she said. “If people weren’t sure we were telling the truth, they could see it. The tour, the evidence and the stories were there. The residents answered questions without hesitation.”

Andy Curliss, chief executive office of the NC Pork Council did not address specific allegations of harassment. He said that the organization “encourages all hog formers to treat their neighbors with respect and welcome the opportunity to sit down with state regulators and those who live near our farms to address any concerns they may have.”

DEQ did not deny or refute the allegation that the giant hog farms operating under general swine waste permits were creating discriminatory impacts. Instead, state officials posed an anemic argument of why these minority communities were being unduly affected: that people were moving near them.

DEQ countered to the EPA that the population has grown and demographics have changed in areas where there are concentrations of industrial hog farms. The influx of Latinos, in particular, DEQ speculated, may have been due to jobs created by the hog industry.

The EPA was unfazed. “The reasons for an increase in the minority population in the last 20 plus years doesn’t change DEQ’s obligation to ensure that its current programs and activities don’t have the effect of subjection individuals to discrimination … “

DEQ’s defense of the hog industry’s practices is among the reasons residents distrust state regulators.

“It’s the cumulative impact of a number of decisions,” said Will Hendrick, an environmental attorney with Waterkeeper Alliance. “These are the same communities with poultry farms, sludge fields, landfills. They’re under assault from different fronts. It’s somewhat disheartening that they don’t feel they can expect anything from the state. Their complaints get back to [farm] operators. They feel abandoned by their state government.”

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EPA’s recommendations to DEQ

  • Assess the Swine Waste General Permit to determine how it should be changed to substantially reduce impacts on nearby residents. The EPA also asked for a timeline.
  • Assess current regulations on industrialized hog farms and determined what could be changed. If the DEQ claims it doesn’t have the authority to change a rule, it needs to show evidence of the impediment.
  • Evaluate risk management options, such as covering the lagoons, not using dead boxes [a holding pen for hog carcasses] and not spraying on the weekends.
  • Assess current swine waste technologies and what could be adopted
  • Conduct an internal evaluation of DEQ’s enforcement and compliance of industrialized hog farms. If corrective measures are needed, deliver a timetable to do so.
  • Evaluate its non-discrimination program if its in place, using a federal checklist. If the program hasn’t been established, DEQ is to correct the deficiencies.

The light looks different in Duplin County. Located in the coastal plain, the county lies only 55 miles from the Atlantic Ocean. With the marine clouds diffusing the sunlight, the skies feel more vast. The nearly flat to rolling terrain slouches toward the coast, stepping over ancient shorelines from millions of years ago.

Duplin County is also veined with waterways: the Northeast Cape Fear River [11], Muddy Creek, Bear Swamp, Maxwell Mill Pond, Picadilly Bay. The challenge, then for swine farmers is how to keep the waste from 2.2 million hogs out of not only the surface water, but the groundwater — which can infiltrate into private wells.

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Duplin County

Although in 1997, the state placed a moratorium on new hog lagoons — a ban that became permanent in 2007 — these laws don’t adequately address the conditions at existing lagoons. DEQ had a chance to rectify that problem in 2014 by enacting stronger permit requirements. Instead, nearly all hog farms in North Carolina operate under a general waste management permit, which environmental attorney Will Hendrick said is inadequate to regulate the volume of manure generated by these farms.

Hog lagoons range from 10 to 13 feet deep and consume as much as eight square acres of land. Most of these earthen lagoons are open pits holding tens of thousands of gallons of waste and water. The lagoons can leak or even fail, especially during hurricanes and floods.

One North Carolina hog farmer, who asked not to be named, told NCPW that it can cost from $20,000 to $60,000 an acre to remove the sludge from a lagoon, “that is, if you can find a place to put it.”

Most farmers spread the manure, mixed with water, by spraying it on agricultural fields. “But then you have to be careful not to overload the soil with heavy metals,” the farmer said.

There are regulations governing when farmers can spray the sludge, especially if heavy rain is in the forecast. But Hendrick said those regulations aren’t adequately enforced; given the number of farms, it would be impossible for state inspectors to catch every violation.

Another requirements of general permits is that the waste, either via lagoons or sprayfields, not enter the state’s waterways. But it’s clear from water sampling that nitrogen and phosphorus from manure is entering the rivers. And since the pits are open, there needs to be tighter regulations on odor control.

“Over the years, we’ve asked the state to address the disparate racial impact of permitting decisions” and grant individual waste permits specific to an area, Hendrick said. Farms near private homes or waterways would have different permitting requirements than those farther away.

“The coastal plain is hydrologically ill-suited for this type of management system,” he added. “It’s an archaic waste management system.”

However, most of the financial responsibility and liability for maintaining or decommissioning the lagoons is not placed on Smithfield or Prestage, but the farmers. The farmer told NCPW that his colleagues want to upfit the lagoons to newer technology, but they don’t earn enough money to do so. “We should answer to our own communities,” the farmer said.

Since the pork companies actually own the pigs — a contract farmer is paid only to raise them to weight — they can choose not to renew a contract. Or the companies can reduce the number of pigs it delivers to a farmer, and thus reduce the payments. Many hog farmers are deeply in debt. And if a farmer complains, he not only could be out a livelihood, albeit a small one, but he would be stuck with the lagoons.

“All growers are faced with the liability of lagoon and sludge,” the farmer said. “If the companies gave hog farmers a 15 to 20 percent raise we could be more environmentally friendly.”

“It’s economic servitude,” Hendrick said. “The pork companies disavow the liability for the waste management. The current system is causing serious environmental and public health problems, but the system is rigged against sustainability. The technologies are affordable. What’s lacking is sufficient investment.”

Curliss of the NC Pork Council, the trade and lobbying group for the pork producers, said the organization “supports and encourages the adoption of waste management technologies that are economically feasible for North Carolina farmers.” This includes swine waste-to-renewable energy technologies.

Under a 2000 agreement between Smithfield and the then-NC Attorney General Roy Cooper, Smithfield agreed to spend $15 million on research for environmentally superior technology. Curliss said a preliminary analysis conducted by Dr. Kelly Zering at NC State University projects that it would cost approximately $5.4 billion 10 years to retrofit all permitted farms in North Carolina to such a technology.

However, a 2014 analysis from UNC [14]concluded that between grants, loans and federal programs, the cost for some technologies, such as anaerobic digesters and biogas, is cheaper. Yet North Carolina hasn’t taken advantage of those programs. From 2003 to 2012, the  federal government made 217 grant and loan investments worth more than $100 million for the biogas technology. None of those investments were in North Carolina.

“These systems represent low-hanging fruit for biogas technology,” the report said. “Simply taking full advantage of these resources … could move the state forward.”

Meanwhile, residents of eastern North Carolina and their attorneys are waiting for DEQ to respond. “We’re very hopeful we can sit down with the interim secretary (Bill Ross) and the new secretary (Michael Regan) and start hashing out a solution,” Haddix said. “We’re hoping this very clear signal from the Office of Civil Rights will be heeded. This letter confirms what the residents have been saying for nearly 20 years.”

Curliss said the group remains “willing to sit down with state regulators and those who live near our farms to discuss their concerns.”

However, Naeema Muhammad remains skeptical that the pork council is looking out for residents’ well-being.

“I’ve seen enough of them. We’ve done all the begging and pleading we’re going to do,” Muhammad said. “We’re not going away.”