EPA to Probe Whether North Carolina’s Permitting of Biogas From Swine Feeding Operations Violates Civil Rights of Nearby Neighborhoods

The EPA has decided to investigate North Carolina’s 2019 decision to allow four pig feeding operations to generate biogas from hog waste lagoons, and environmental justice advocates hope the probe will yield greater civil rights protections for Blacks and Latinos who live nearby. 

In September 2021, the Southern Environmental Law Center (SELC) filed a complaint alleging that degraded “groundwater, surface water and air quality” from biogas operations at industrial hog feeding operations in North Carolina would disproportionately harm predominantly Black and Latino residents in violation of both Title VI of the Civil Rights Act and state environmental laws. 

On Jan. 13, the EPA opened the investigation into the state regulator’s approval of a plan to use swine waste digesting equipment to produce biogas and its awarding of permits to four hog facilities despite the likelihood that the project will increase air and water pollution.

Blakely Hildebrand, an SELC attorney, said the EPA’s decision to look into the complaint sends a strong message to DEQ that communities of color that live near these hog operations must be protected.  

“DEQ’s own environmental justice report noted that these four hog operations shared proximity with largely black and Latino neighborhoods,” Hildebrand said. “The agency did not take any steps to address those disproportionate impacts or conduct a more robust environmental justice analysis.”  

Josh Kastrinsky, a DEQ public information officer, responded that the agency is reviewing the EPA letter. “DEQ is committed to the fair treatment and meaningful involvement of all North Carolinians and we have given significant priority to compliance with Title VI requirements, particularly with regard to animal waste permitting,” he said.

Roy Lee Lindsey, CEO of the North Carolina Pork Council, said the EPA’s decision to launch an investigation into the biogas permits does not represent any finding of fact. “We believe the facts will show that there is no discrimination or disparate impact caused by the use of digesters on these farms,” he said.

It was surprising, he added, that four farms trying to make environmental improvements are facing such a complaint.

Owned by Smithfield Foods Inc., the four permitted swine facilities are located in Duplin and Sampson counties, which have the highest concentration of hog operations in the United States. A total of 9 million hogs are raised annually at 2,000 industrial hog operations “in the low-lying, flood-prone coastal plain of eastern North Carolina,” the SELC complaint stated.

Nearly 21 percent of Duplin County’s population is Hispanic or Latino, the highest proportion of any county in the state, according to a 2020 report from the Waterkeeper Alliance that cited 2010 census data. The report found that Sampson County had the third-greatest proportion of people who identified as Hispanic or Latino in the state. Census data identifies African Americans as the second largest ethnic group in Duplin and Sampson counties, where they make up a quarter of the population.

The $500 million plan to produce biogas from hog waste is a joint venture between Smithfield Foods and Dominion Energy Inc. known as Align Renewable Natural Gas, or Align RNG, began in 2018. The project requires hog operators to install anaerobic digesters over the waste lagoons and capture methane, which is piped to a central processing facility and ultimately sold as natural gas. 

“The community members’ concern was that the first four permits were individual permits and a general permit under the farm bill will create a situation where one size fits all,” said Sherri White-Williamson—the Environmental Justice Community Action Network co-founder. 

Each farm is different in size and production, as well as the way the DEQ monitors their production processes. But the general permit will treat all hog facilities as the same regardless of size and production, and will have similar monitoring requirements once finalized. 

In July last year, the North Carolina legislature passed the Farm Act of 2021, which requires the DEQ to create a fast-tracked permitting process within a year that would enable any existing hog farm to obtain the “general permit” to become part of the biogas program. 

Environmental justice advocates hold that the state’s support of the projects clashes with the Biden administration’s promise to redress environmental justice concerns by redirecting federal resources to mitigate the historical inequalities and environmental harms suffered by Black and brown communities from infrastructure projects that divided neighborhoods or evicted their residents.  

Pricey Harrison, a Democrat in the North Carolina general assembly, said there is very little interest there in passing strong environmental protection legislation regulating hog operations. 

“But they have had some great activity and legislation in favor of them by legislation that prevents nuisance lawsuits by neighbors of hog farms, chipping away at some of the strong protections,” she said.

“It’s very frustrating that something that we know is right for the people can’t get past this legislature because there’s a campaign money block here,” Harrison added.

Two days before the EPA opened its probe in response to the SELC complaint, the community-led push back against the state’s biogas harvesting plans suffered a setback when, in a Jan. 11 judgment, the North Carolina Office of Administrative Hearings dismissed a similar complaint challenging the same four permits from the state. 

Presented by SELC on behalf of the Environmental Justice Community Action Network and Cape Fear River Watch, complainants argued that DEQ violated its responsibility to prevent water pollution in issuing the permits and failed to require better waste management to protect North Carolina’s waterways and communities.

Administrative law judge Donald van der Vaart upheld the state’s

permits, allowing “Smithfield-owned hog operations to use vast pits of untreated hog feces and urine to produce gas while spraying the harmful waste on surrounding areas,” SELC stated in its response. 

“These hog operations pollute our waterways and put people nearby and downstream at risk, and we are disappointed to see what amounts to a green-light for this industry’s continued pollution,” said Kemp Burdette, the Cape Fear Riverkeeper.

Advisory Body Urges Protections 

DEQ has lately come under pressure from community groups as well as the Environmental Justice And Equity Advisory Board (EJEAB)—which advises the state agency on community-related concerns—to carry out a set of actions to redress public concerns about biogas production permits. 

On Oct 11, more than a dozen rights groups and environmental organizations sent an open letter to the Board, drawing attention to the fast roll-out of the biogas general permit by DEQ as “a critical environmental justice concern.” 

The community groups urged the EJEAB to ensure that the biogas permits are not issued without evaluating adverse cumulative impacts on the communities living next to the facilities.    

Taking note of the public criticism and concerns, the Board Chair James H. Johnson sent an advisory note to DEQ Secretary Elizabeth Biser on Oct 22. “Biogas produced using the lagoon and sprayfield system is not a clean source of energy,” the letter stated. It asked DEQ to ensure that the new general permit include robust and substantive protections against hog waste pollution and its impact on surrounding communities.  

“Cleaner technologies and practices that reduce water and air pollution—and that are compatible with biogas production— are available and practicable,” the EJEAB stated, adding “some of these technologies are used by Smithfield Foods, the nation’s largest pork producer, in other states. North Carolinians deserve the same protections.” 

The letter reminded the DEQ of the negative public reaction to the biogas project from hundreds of people across North Carolina and beyond “who appealed to DEQ to protect their communities and the environment from pollution from lagoons and sprayfields.” 

“DEQ has failed to heed these calls” since the agency began considering permits for the first large-scale biogas project almost two years ago, the chair remarked. 

The letter draws a roadmap for the state regulator to better protect communities from possible pollution by the biogas projects, including a comprehensive environmental justice analysis to assess and minimize the cumulative impacts of the general permit and other DEQ-permitted operations on nearby populations. This analysis should be the basis for a meaningful public engagement rather than a formality, the board observed.

In light of the possibility that waste from the digesters could be more concentrated and harmful, the board recommended employing cleaner waste management technology and practices as well as; robust groundwater and surface water monitoring at every hog location and the updating of nutrient management plans to staunch over-application of lagoon and poultry waste in fields. 

In its response to the EJEAB’s advisories, the DEQ sent a  letter on Nov. 23 promising  transparency in the development of the general permit. “DEQ is committed to holding four public meetings: one public input session as part of the stakeholder process and three public hearings in 2022,” the letter stated. It added that the agency plans to release the draft permit for a 90-day comment period with 60 days of notice for the three public hearings.

An earlier EJEAB note had also made it clear that “the permitting process must take into account local realities such as community demographics, environmental and health risks, and the cumulative impacts of other DEQ-permitted activities in the vicinity.”

Despite Community Concerns, State Regulator Ploughs Ahead To Finalize Permit

Meanwhile, the state regulator is on track for finalizing the general permit by a July 2022 deadline despite EPA’s move to investigate the charge that it violated federal law in granting the four biogas permits.  

“We don’t think DEQ followed the right process in issuing these initial four biogas permits,” SELC’s Hildebrand said. “And we don’t want DEQ to make the same mistake again with the general permit for biogas it plans to finalize before July.” 

Since Nov. 2021, the state agency has held consultations inviting technical-level community feedback on the new Animal Waste Management Digester System General Permits. 

DEQ will hold three more public meetings in the coming months, both virtually and in-person, to get feedback and concerns from the communities to allay their concerns about biogas harvesting under the general permit. 

White-Williamson, who is also a member of the Environmental Justice Equity and Advisory Board, said it is clear from past experience and recent consultations that without the push back from the board, residents and activists, the DEQ would not include communities as it deliberates what the general permit would look like. 

“Previously, DEQ did not require air or water monitoring of these facilities,” she said. “And the concern is that those requirements would not be included in the general permit.” 

There are also concerns over the DEQ’s ability to ensure meaningful community engagement because of the  COVID-19 pandemic and the fact that few low-income communities have dependable internet access.

Hildebrand, the SELC attorney, said that the responsibility to ensure communities are protected from the hog operations’ biogas projects primarily rests with North Carolina lawmakers whose legislative actions require DEQ to finalize the general permit by July 2022. “DEQ is bound by the Farm Act to deliver the new general permit within a year,” she said. “So the state legislators bear the responsibility for pushing biogas despite several concerns.”   

Will Hendrick, a lawyer for North Carolina Environmental Justice Network, said that when the affected communities successfully pursued legal remedies in the past, the North Carolina legislature changed the laws to favor the hog and poultry industry. 

“In a recent case, roughly 500 North Carolinians sued the pork producing subsidiary of Smithfield Foods under nuisance law, arguing that the waste management practices that the company authorized adversely affected the use and enjoyment of their property,” he said, “just basic property rights.”.

Hendrick said that after communities successfully asserted their rights in the courts, the North Carolina legislature stepped in and amended the law to effectively prohibit similarly situated residents from pursuing justice.