Alone on the Range

In September 2016, with Tropical Storm Hermine bearing down on North Carolina, Kemp Burdette rented a single-engine plane and flew over Duplin County. Burdette, a riverkeeper with the environmental group Cape Fear River Watch, was worried that some of the local pig farmers might try to drain their manure lagoons before the rains hit, to prevent them from overflowing. Spraying waste is illegal right before storms because of the risk that runoff from saturated fields will contaminate waterways.

As he flew, Burdette estimated that he saw at least 35 farms spraying their fields. He took high-resolution, GPS-stamped photographs and videos documenting the apparent violations, and then filed a complaint with the state Department of Environmental Quality (DEQ), hoping the iron-clad evidence would move the agency to act. He and his colleagues did the same a month later, just before devastating Hurricane Matthew. “This isn’t just one bad actor,” he said. “This was widespread—complete disregard for the rules.”

But, according to Burdette, DEQ told him that the GPS-stamped images were inadequate proof. “They were basically saying, ‘There’s nothing we can do,’” he says. “They can’t stand behind evidence collected by somebody else.” Nor did they have funds to make their own aerial surveys. For evidence, DEQ said it could only review the farms’ self-reported spray logs. And in November 2016, when Burdette and his colleagues followed up, they say, all public traces of their complaints had disappeared.

For years, North Carolina regulators shielded the identities of polluting farms, burying public complaints against them and leaving those who lived nearby with few avenues for redress. Neighbors said their complaints were going unheard. 

A joint investigation by The Guardian, Food & Environment Reporting Network, and the Midwest Center for Investigative Reporting backs up those residents’ assessments. In response to a public-records request, DEQ released only 33 public complaints against livestock operations in North Carolina from January 2008 to April 2018. Over the same period, other hog states have registered literally thousands.

And then, abruptly, the DEQ reversed that policy this spring, saying it had validated 62 complaints against animal operations over a six-month period and then posting them online. The offenders included 11 industrial hog farms, some of which had let their waste discharge into ditches and streams. The change of policy meant that state regulators had publicly documented nearly twice as many violations in the six months ending April 2019 than in an entire decade. What happened?

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Interview on WNCU-Durham’s The Dirt with writer Barry Yeoman and FERN editor-in-chief Sam Fromartz.

Raising hogs in North Carolina used to be a side gig to the real business of growing tobacco and cotton. Then, in the 1980s and ’90s, the industry exploded, with concentrated animal feeding operations (CAFOs) on the state’s coastal plain housing up to 60,000 animals apiece. Most of the state’s 9 million pigs live indoors, their waste flushed through slats into open pits called lagoons. When the lagoons get too full, the waste is sprayed onto crop fields as fertilizer, though these manure pits have also overflowed and breached their walls, particularly during hurricanes, sending waste into streams and rivers.

As the industry grew, the state legislature protected it in numerous ways, even barring counties from zoning out hog farms during the key expansion years. But lawmakers couldn’t ignore the mounting hog waste, particularly when it polluted waterways.

In 1997, the legislature imposed a temporary moratorium on new farms using lagoon-and-sprayfield systems: in 2007 it made the moratorium permanent, essentially capping the number of hog farms at around 2,300. But existing industrial farms were allowed to continue business as usual, despite widespread evidence that they were fouling the rural landscape and making for noxious neighbors.

“It smells like a body that’s been decomposed for a month,” said Rene Miller, a retired truck driver from Duplin County, the heart of hog country. Sundays after church, her family used to gather under the oak tree beside the house. They danced, played checkers, and ate fried chicken, collard greens, and corn. “That was my life back then,” she said. Now, with hog waste sprayed onto a field across the road, she stays inside with the air conditioner cranked up.

A study published in 2018 by the North Carolina Medical Journal concluded that families living near hog CAFOs saw higher rates of infant mortality and deaths from anemia, kidney disease, and tuberculosis. The researchers did not establish causality. Other studies have associated the state’s hog-farm emissions with asthma, elevated blood pressure, sleep disruptions, and depression.

A University of North Carolina study, from 2014, found these issues “disproportionately affect” people of color: African Americans are more than 1-1/2 times more likely than whites to live within three miles of an industrial hog operation in North Carolina. Latinos and Native Americans are also more likely to live near CAFOs.

The North Carolina Pork Council declined an interview request, but has in the past criticized the study from 2014.  It said the three-mile radius in the study captured too many people to be meaningful, and that co-author Steve Wing, an epidemiologist, was an outspoken hog-farm opponent. (Wing died in 2016.)

In comments submitted to DEQ last March, the Council also noted that the 2018 North Carolina Medical Journal study came from a research program at Duke University that received funding from a critic of factory farming.

The industry insists health concerns are exaggerated. “We don’t think these types of symptoms or things are going on in the communities where we do business,” Kraig Westerbeek, a senior director at Smithfield Foods, the world’s largest pork producer and the state’s dominant player, said in a deposition and in reference to an older study that found increased depression, anger, and confusion among neighbors who experienced hog-farm odors. “There are studies that can say almost anything,” he added. 

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The moratorium on lagoons and spraying only applies to new farms. Meanwhile North Carolina’s legislators appear to have continued to protect existing farms and discourage neighbors from seeking help. In 2014, for example, they passed a law keeping complaints filed with the state environmental agency confidential unless the department “determines that a violation has occurred.” State Representative Jimmy Dixon, a sponsor, said the provision was designed to protect farmers from false accusations.

“We fully expect and desire to have any violations known and exposed,” the Duplin County Republican and semi-retired poultry farmer said in an interview. “But just to throw it wide open for every Tom, Dick, and Harry to make unsubstantiated claims, like some of the people do—we believe that there is an inherent expectation that I should be determined to be innocent until proven to be guilty.”

The confidentiality measure, part of a larger bill, passed with bipartisan support.

DEQ interpreted the law to require disclosure of a complaint only when there’s a formal violation notice or penalty, which the agency has historically been loath to initiate. “We believe [that] if they find a violation of the permit, they just tell the operator, ‘Hey, this doesn’t look right. You need to address it,’” said Elizabeth Haddix, managing attorney at the North Carolina regional office of the Lawyers’ Committee for Civil Rights Under Law, which represents some of DEQ’s critics. “They may not make any written record of that violation.” This is how, until recently, complaints vanished.

It also helps explain why the agency located only 33 complaint records for a period of more than a decade, when queried by the Midwest Center for Investigative Reporting. Other states with major livestock industries had far more: Nebraska provided 2,131 complaints; Georgia 5,652; and Texas 6,411. Iowa, the top hog producing state, provided 2,393.

The North Carolina Pork Council, in a 2019 letter to DEQ, said the “relatively minimal number of violations” in the state signaled “a robust and working regulatory system.” But even careful documentation hasn’t guaranteed enforcement in North Carolina. DEQ spokesperson Sharon Martin would not discuss the complaints filed by Burdette and his colleagues after the 2016 storms. She did acknowledge the animal-operations program “is underfunded due to the last decade of budget cuts.”

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Feeling unprotected by regulators, North Carolinians living near hog farms have turned to the courts, with more than two dozen lawsuits by more than 500 plaintiffs, including Rene Miller, against Smithfield Foods’ hog-production subsidiary, which contracted with farmers to raise its animals.

Meanwhile others looked to the machinery of federal and state government to hold DEQ more accountable. In September 2014, the North Carolina Environmental Justice Network, Rural Empowerment Association for Community Help, and Waterkeeper Alliance filed a complaint with the U.S. Environmental Protection Agency’s Office of Civil Rights. It said that DEQ failed to consider the outsized harm to people of color when it issued that year’s permit governing nearly all large hog operations, violating federal civil-rights laws. The permit is issued every five years. 

The two sides agreed to mediation, which fell apart after five representatives of the North Carolina Pork Council and its national counterpart showed up at what the environmentalists call a confidential session. (They suspect DEQ employees tipped off the Pork Councils.) “That was unnerving,” said Naeema Muhammad, the Environmental Justice Network’s organizing co-director.

DEQ did not respond to questions about the mediation. In an email, Robert Brown, a publicist for the North Carolina Pork Council, said the mediation was “no secret” and that his client wanted “to engage in a constructive dialogue, recognizing that any resolution of the complaint would have a direct impact on Pork Council members.”

The Pork Council described the complaint as part of a “coordinated, multi-pronged attack on our farmers.”

After the mediation failed, EPA investigators visited North Carolina and interviewed more than 60 hog-farm neighbors. The residents described stenches so strong that it made them gag, vomit, and lock themselves indoors. Several also mentioned keeping silent, because “for more than 15 years, the government has been well aware of the conditions they have to live with, but has done nothing to help, so complaining to NC DEQ would be futile,” the EPA wrote in a letter to DEQ. Those who did complain reported “threats, intimidation, and harassment” by the industry.

Finally, in December 2016, advocates challenged the complaint problem head-on, filing a separate petition with the North Carolina Office of Administrative Hearings, alleging that DEQ had failed to investigate complaints against hog farms. The groups pointed to the photographic evidence of illegal spraying just before Tropical Storm Hermine and Hurricane Matthew and the later disappearance of those complaints.

This multifaceted campaign began to bear fruit in 2017, after a change of governors and leadership in North Carolina. Incumbent Republican Pat McCrory was replaced by Democrat Roy Cooper, and he appointed former Environmental Defense Fund official Michael Regan to head DEQ. “We all had high hope,” the Environmental Justice Network’s Muhammad said of the new administration.

Shortly after the inauguration, DEQ issued “notices of deficiency” to nine farms that had sprayed their fields right before Hermine, requiring the farms to take corrective action. These farms included five that Burdette said he photographed the previous September. DEQ based its findings on the farmer-reported logs.

The new DEQ leadership also sat down with the advocates and hammered out two settlements. In the EPA civil-rights complaint, DEQ agreed to tougher oversight in its permit for large hog operations. It would improve air and water monitoring, and would develop a mapping tool to analyze whether people of color were disproportionately harmed by its decisions. In the settlement, DEQ did not acknowledge wrongdoing.

In the other settlement, DEQ agreed to implement a new system for investigating complaints, and to post six months’ worth of data. The first posting covered November 2018 through April 2019, showing DEQ received 138 complaints and found 62 violations.

When it comes to how regulators handle complaints, “I think the settlement was a game-changer,” said Haddix.

But the results of these challenges to the industry have not been entirely positive. Take the lawsuits: On one hand, juries have returned five verdicts against Smithfield. The awards have ranged from $102,400 to $473.5 million, though the largest were dialed back under state law. But the legislature responded to the suits by limiting neighbors’ future rights to sue and collect damages. Dixon, who helped shepherd the legislation, called the lawsuits “an egregious grab of money” by attorneys.

Smithfield did not respond to interview requests. In an email, it called the largest award an “outlier verdict” and noted that appeals are pending.

And DEQ declined to comment when asked if it had adopted a more aggressive policy. Advocates describe what Haddix calls a “bunker mentality” at the agency—a fear of appearing too proactive. 

For example, DEQ missed its own April 1 deadline for creating the mapping tool, which meant it couldn’t be used before the agency issued the 2019 five-year hog-farm permit. When advocates asked DEQ to issue a short-term permit until the tool could be developed, the agency balked. It said the tool was “educational” and “not intended for regulatory purposes.”

“What the hell good is a community-mapping program if it’s not going to slow down the degradation?” asked Muhammad. 

In May, DEQ posted a beta version of the tool. Haddix calls it flawed; for example, it doesn’t distinguish between large and small farms. DEQ’s Martin declined to discuss the tool.

Given the legislative climate, and lawmakers’ control over the state budget, environmentalists say they’re not surprised by the timidity at DEQ. “When I think of ‘agency capture,’ it’s not just a product of willful decisions not to enforce, or willful decisions to demonstrate favoritism to the industry,” says Will Hendrick, staff attorney for the Waterkeeper Alliance. “Some of it is agency aversion to the risk that may result from taking action against an industry that is favored at the legislature.”

In calls and emails, DEQ’s Martin would not discuss the political climate or the threat of legislative backlash. Nor would DEQ officials be available for interviews.

“That is all I am able to provide at this time,” she wrote.

Updates story on Aug. 30, 2019 to elaborate on the 2018 North Carolina Medical Journal study, note Rene Miller’s participation in the lawsuits, and add that DEQ did not acknowledge wrongdoing in the EPA civil rights complaint. The photo caption of the briefcase was corrected to note that Don Webb, of Stantonsburg, North Carolina, is now deceased.