Pressure mounts on NC’s largest pork producer to clean up its act

(Map Sources: NC DEQ swine permit database, court documents)

Frenches Creek Finishing lies in the watery lowlands of Bladen County, near Lion Swamp, Conkill and Briary bays, and a chain of canals that drain toward the Cape Fear River and the sea.

Owned by Murphy-Brown, the farm, which includes a nursery, can house more than 17,000 hogs, including the newly weaned and those ready for slaughter. It is also one of 11 industrialized swine farms named in a 2006 federal consent decree because their operations threaten the quality of the groundwater.

However, for nearly four years, Murphy-Brown has allegedly stonewalled an independent consultant’s court-approved visits to the farms. As established by the consent decree, the visits were intended to further assess each site’s conditions and waste lagoons to determine if an environmental clean up was necessary. Murphy-Brown argues that it “encouraged” the consultant to visit the site. However, the consultant could enter the property only with Murphy-Brown’s written permission.

Murphy-Brown has argued that the on-site inspections and potential clean up plans are premature — an objection US District Court Judge Malcolm Howard in this week’s ruling, called “unfounded.”

Now the world’s largest pork producer must allow the consultant, S&ME of Spartanburg, SC, to continue its long overdue work: gathering more data from the farms and if warranted, prescribing a “corrective action plan” that would specify methods of effecting a clean up.

“It’s an important step forward,” said Geoff Gisler, an attorney with the Southern Environmental Law Center. The SELC represented the plaintiffs, including the Waterkeeper Alliance, in the case. “The consultants need to go on site and determine what’s there and how to fix it.”

Dale Mullen, an attorney with McGuireWoods representing Murphy-Brown, countered that S&ME based its conclusions on old and outdated information, adding, “media reports that pollution was found on the farms were just wrong.”

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The 11 farms in question are located in eight counties in eastern North Carolina, where the majority of the state’s 10 million hogs reside. The smallest farm can hold 1,000 animals, the largest 20,000. Many of these facilities are near bodies of water, which raises the stakes should any contamination seep from the lagoons. Just under half of the farms are in zip codes in which the majority of the residents are Black, Latino and American Indian, according to Census data.

The case began 15 years ago, when the Waterkeeper Alliance filed a complaint alleging that some hog farms were violating the Clean Water Act by discharging, intentionally or not, contamination into groundwater.

The court issued a consent decree in 2006, requiring that an independent consultant — agreed to by Murphy-Brown and the Alliance — evaluate and score 178 swine farms in three phases. The farms were dispersed across 25 counties in eastern North Carolina.

How S&ME calculated the contamination risk for these farms is complex. In essence, the company spent Phase I analyzing information provided by Murphy-Brown, plus state inspection records and the geography of each site.

The criteria included the farm’s proximity to a floodplain, residences, drinking water wells or surface water, as well as the location of waste lagoons and spray fields on which waste is dispersed. The consultant did not visit the farms, because its contract with Murphy-Brown prohibited it from doing so.

Nonetheless, based on the data and a questionnaire delivered to the pork producer, facilities were ranked according to groundwater risk. Those that either exceeded a cutoff score or that showed certain deficiencies automatically triggered a further review — Phase II.

Although no farm scored high enough to require a Phase II investigation, conditions at the 11 farms did qualify for a “default trigger.” S&ME had wide latitude to define the trigger, but one of the red flags was lagoon monitoring reports. If those reports indicated that a lagoon could be leaking, or if there were any puddles, seepage or dead grass at the base of the berm that could be the result of a leak, then the farm advanced to Phase II.

That required an in-depth site visit and monitoring, automatically followed by Phase III, a Corrective Action Plan, to halt and reduce the risk of contamination.

Seven farms qualified under this default trigger.

The remaining four farms advanced to the second phase because data, again provided by the pork producer, showed elevated levels of nitrogen in production wells (i.e. wells located on and used by the farms).

Mullen told Policy Watch that Murphy-Brown had answered “no” to a questionnaire asking if  there were leaks or physical evidence of them. However, S&ME changed the answers to “yes,” she said, based not on site visits, but “solely on comments in inspection reports by the pork producer’s environmental management system auditors and state inspectors.”

However, the consent decree, which the pork producer agreed to, does not call for onsite visits in the first phase, but rather, data analysis. That information noted unexplained changes in lagoon water levels and a wet spot at the base of a lagoon berm. Murphy-Brown attributed those changes to other factors, but did not explain what those factors were.

As for the elevated nitrogen levels, Murphy-Brown acknowledged some wells did have exceedances, but that the lagoons were not the source.

In March 2013, after the 11 farms were flagged for Phase II, Murphy-Brown’s project manager, Dawn Williamson, asked the consultant to “proceed with the preparation of the Scope of Work,” according to an email included in the court record.

But six months later, Murphy-Brown reversed course. It took issue with S&ME’s recommendation that 11 farms deserved further scrutiny. The company’s stance contradicted the core of the consent decree, the SELC’s Gisler said — “the consultant’s discretion.”

The pork producer, displeased with the results, argued that S&ME should reconsider its data, methods and conclusions — even though the basic information came from Murphy-Brown.

“Having received the benefit of excluding the vast majority of facilities based on that data,” SELC responded in court documents, “Murphy Brown cannot now claim the data are invalid.”

Murphy-Brown even hired its own consultant, GeoSolutions, which was not allowed in the consent decree. GeoSolutions used a “non-invasive” method to study the lagoons, and asserted they were not leaking. Mullen said, the elevated nitrogen was the result of the “poor conditions of the wells themselves,” which allowed surface water to seep in.

However, S&ME reviewed GeoSolutions’ data, and found it “could not be verified and were not sufficient.”

The company has maintained that drilling additional monitoring wells at the farms is neither cost-effective nor efficient. Yet those wells could reveal if any contamination was traveling through the groundwater.

After several failed mediation sessions, SELC returned to court earlier this year to force Murphy-Brown to accept the Phase II findings and allow S&ME to conduct on-site monitoring at the farms.

Kelly Hunter Foster, senior attorney for the Waterkeeper Alliance, released a statement saying the group is “pleased that the court put an end to Murphy-Brown’s four-year fight to block sampling and cleanup of groundwater pollution at these company-owned swine facilities in North Carolina.”

[notification type=”notification_info” ] Judge Howard’s ruling was the second legal setback in a week for Murphy-Brown. In a separate federal case, US District Court Judge Earl Britt allowed 26 nuisance lawsuits to proceed against the state’s largest pork producers; the trial is scheduled to begin in April.

Meanwhile, a Title VI complaint filed in 2014 by civil rights attorneys against the NC Department of Environmental Quality is still in mediation. That complaint centers on the environmental justice issues of industrialized hog farms, which tend to be located near communities of color and low-income areas.

And the Environmental Management Commission is slated to decide on surface water rules related to hog farms. Known as 2T rules, they govern systems like the farms that ostensibly are “non-discharge,” meaning no contaminated water leaves the site and enters lakes, streams, rivers or wetlands. But at a public hearing on the rules last month, Will Hendrick, an attorney with the Waterkeeper Alliance, challenged the notion that hog farms don’t discharge as “legal fiction.” [/notification]