Originally published in the Border Belt Independent, May 2022.
LAST WINTER, AS THE N.C. DEPARTMENT of Environmental Quality (DEQ) considered a new permit for a Robeson County plant that generates electricity by burning poultry waste and wood, it turned to the public for comment.
The earful it received was mighty and unanimous.
The facility, owned by an Alabama-based company called North Carolina Renewable Power-Lumberton, LLC, had racked up numerous air-quality violations before it voluntarily shut down its boilers in 2020. It had exceeded limits for carbon monoxide, sulfur dioxide, nitrogen oxides, and fine particulate matter, common pollutants that imperil human health. Its monitoring system had logged excessive downtime. It had signed two consent orders with the state and paid more than $76,000 in penalties.
Now the company wanted to reopen, and was seeking a new permit allowing more emissions. At DEQ’s Feb. 21 online hearing, 33 people pleaded with the agency’s Division of Air Quality to deny the application. None defended the company.
“We are firm believers in second chances,” said Joel Porter, policy manager for CleanAIRE NC, an environmental nonprofit. “But in this instance … we’re talking about the 11th, 12th chance. At what point does a bad actor stop getting chances?”
It wasn’t just the plant’s track record, the speakers said, but also its location. The facility sits just south of Lumberton, in a flood-prone stretch battered by Hurricanes Matthew and Florence. Within the Census tract, 78% of residents are Black and 11% Indigenous. The area has a poverty rate well above the state and county averages. And the zone is thick with industry. Less than a mile away, Duke Energy is excavating toxic coal ash from a retired power plant. Closer still, the British company Active Energy was getting ready to open a wood-pellet factory, even as it fought a lawsuit over the discharge of polluted wastewater. (Active Energy denied wrongdoing and has since pulled up stakes in Lumberton.)
The sheer accretion of hazards, particularly in communities of color, are sometimes called “cumulative and disproportionate impacts.” At the hearing, residents said these impacts were serious enough for DEQ to reject the permit application.
“It’s beyond me that we continue to be victims of, or the sacrificial lambs for, energy production in North Carolina,” said Aminah Ghaffar, then a Democratic candidate for state House. “We’re tired of being overburdened.”
DEQ overruled those residents. On May 23 it issued the air-quality permit that North Carolina Renewable Power had sought, with some additional conditions.
In an accompanying report, DEQ hearing officer William Wike Jr. said the agency went “above and beyond the requirements” to look at race, poverty and nearby industrial facilities. But he said it could not weigh those factors in its decision.
“While NCDEQ is committed to EJ [environmental justice] and equity,” he wrote, “there is no direct legislative authority that either mandates or directs NCDEQ to perform the more expansive type of cumulative impact analysis envisioned by the commenters.”
EJ advocates say the conflict over the poultry-waste plant represents more than a singular clash between worried neighbors and constrained regulators. They have long felt frustrated by DEQ’s narrow interpretation of its own authority. “What’s the point of having a regulatory body if they never regulate?” said Jefferson Currie II, who works for the nonprofit Winyah Rivers Alliance as the Lumber Riverkeeper.
But not everyone interprets that authority so narrowly. Earlier this month, an environmental attorney told a DEQ advisory board that, by disregarding cumulative impacts during permit reviews, the agency might be violating federal civil-rights law.
‘Broiler Belt’
North Carolina has been described as the heart of “America’s Broiler Belt,” which runs from Delaware through the rural South and down to Texas. Along with industrial-scale poultry production comes the challenge of disposing waste materials like manure, feathers, feed and bedding materials. Farmers use this “poultry litter” as fertilizer, but that has its perils: The waste, which is full of harmful chemicals, can seep into local waterways and groundwater. Plus, there’s only so much farmland that needs to be fertilized.
In 2007, the state legislature offered another use for that waste when it passed a law mandating that North Carolina’s electric utilities scale back their reliance on fossil fuels and nuclear power. They were told to substitute more “renewable” sources like solar, wind, geothermal, ocean currents, wood — and animal waste. The law required utilities, starting in 2012, to burn a certain quota of poultry waste to produce electricity.
Industry applauded the measure, saying it would support North Carolina’s $40 billion poultry economy while keeping toxic chemicals out of the water. Others bristled at the notion of calling poultry waste “renewable” without acknowledging that it comes from a large, polluting, lightly regulated industry that disproportionately harms communities of color.
“Renewability and sustainability are not fully overlapping concepts,” said Ryan Emanuel, an associate professor at Duke University’s Nicholas School of the Environment who studies the importance of water to Indigenous people, including the Lumbee tribe, to which he belongs. “We can make poultry litter until the chickens come home. But that doesn’t mean that that’s a sustainable action to keep expanding that industry for the sake of generating new feedstock for power plants.”
Still, the law provided an incentive for North Carolina Renewable Power to retrofit an old coal-fired power plant in Lumberton that had closed in 2009. In a story published by The Robesonian at the time of the plant’s reopening, NCRP said it would do more than burn wood and poultry waste to generate electricity: It would also produce fertilizer, potting soil and a wood product that it would export to Europe.
NCRP would sell the electricity to Duke Energy, which in turn would receive credit toward its compliance with the renewable-energy law. “It was very attractive for us to buy that power,” said Duke Energy spokesperson Randy Wheeless. “There are only so many places we could go for poultry waste.”
DEQ issued a permit that classified the Lumberton plant as a “minor source” of carbon monoxide, nitrogen oxides and sulfur dioxide. That capped its emissions at 250 tons per year in exchange for less stringent regulation. The facility fired up in July 2015.
The following March, NCRP shut down its boilers for five months because it was emitting more carbon monoxide than it had originally intended. Outdoor carbon monoxide is harmful to infants, the elderly, and people with heart and respiratory disease; it can reduce the blood’s ability to carry oxygen and cause symptoms like chest pains. That summer, DEQ also cited NCRP for exceeding the limits for sulfur dioxide, nitrogen oxides, and fine particulate matter, and for problems with testing and monitoring.
“Pretty quickly, it becomes clear that they’re a major source,” said Patrick Anderson, an attorney who submitted comments to DEQ on behalf of 17 conservation-minded groups. “So they get together with the state, and they promise, ‘Hey, we will do better. We’re going to make some tweaks. And we can really stay a minor source.’ And they just could not.”
Carey Davis, NCRP’s executive vice president, declined an interview request for this story. “I don’t really have any comments,” he said. “I don’t have time.” He did not respond to two follow-up emails.
The violations continued, many of them involving excessive pollution, until NCRP shut down its boilers in 2020.
Meanwhile, a dispute was brewing between NCRP and its customer Duke Energy. In an exchange of letters, a Duke attorney accused NCRP of failing to deliver on its agreements and to responding with “incomplete information, untruths, and obfuscations.” What’s more, Duke said, NCRP “attempted to operate in violation of the Facility’s air permit.”
NCRP denied the allegations. Its attorney said that it had suspended operations “because of Duke’s abuse of its monopolistic market position and refusal to pay NCRP what it owes.”
Duke Energy’s Wheeless says the utility no longer buys power from NCRP.
That was the state of things when DEQ announced the February hearing for a new permit that would reclassify the poultry-waste plant as a “major source” of emissions. Environmentalists in Robeson County and across North Carolina began to mobilize for the virtual hearing; they would call attention to NCRP’s repeat violations and the surrounding community’s many stresses. “South Lumberton is sort of like a forgotten city,” said Anita Cunningham, program director for the Robeson County Cooperative for Sustainable Development.
But they knew the challenge going into the hearing: DEQ’s limited sense of its own capacity to protect embattled communities.
Limited power?
Here’s an example.
DEQ has a mapping tool that generates detailed data about race, poverty and environmental hazards for any address in North Carolina. When a major permitting decision is in the works, the agency often prepares an “environmental justice report” or “environmental justice snapshot” laying out these data. The report on NCRP’s Lumberton plant ran 36 pages long.
“The primary purpose is to really get a better understanding of the community, and help us inform our outreach,” said Renee Kramer, the agency’s environmental justice coordinator.
The data do not to inform decision-making, though. “The tool is not intended for regulatory purposes,” DEQ said in a 2019 document, but rather for “educational purposes.”
Emanuel, the water scientist, said this has been a source of tension. Before the mapping tool’s release, he and others met with Kramer. “Everybody wanted to know: What’s the theoretical underpinning for this mapping application? What’s the purpose? What’s the objective that you’re trying to accomplish? Surely, it’s not just outreach and notification. And much to my chagrin, and to the chagrin of other EJ experts and community advocates, that was exactly what she pitched.
“So she got advice from me, and from lots of other people, that that’s not how EJ policy is intended,” Emanuel continued. “It’s not the spirit of the federal policy. Just making space for people to vent their concerns in a cathartic way — which is what all of this feels like; it’s sort of a theater of catharsis — is not environmental justice.” DEQ employees might be sincere, he said. But without the power to stop dirty industries, “environmental justice snapshots are basically ‘thoughts and prayers’ for marginalized communities.”
Kramer declined to comment on the conversations. Sharon Martin, DEQ’s deputy secretary for public affairs, declined to explain why the agency believes it lacks the authority to use EJ factors like cumulative impacts in its permitting decisions. In the hearing officer’s report, Wike wrote that, with a few exceptions, DEQ “is obligated to issue an air permit to NCRP if the applicant has met all federal and state laws, regulations, and rules for the protection of the environment.” The only way public comment can stop a permit, he wrote, is by revealing that the agency “was in error or incomplete” in its air-quality review.
In an email, Martin said DEQ supports the long-term goal of a subcommittee of Gov. Roy Cooper’s Andrea Harris Social, Economic, Environmental, and Health Equity Task Force: to craft a legislative strategy to incorporate EJ criteria into regulatory actions.
But not everyone believes DEQ has such limited power. On May 10, the agency’s Environmental Justice and Equity Advisory Board heard from Jasmine Washington, an associate attorney with the Southern Environmental Law Center in Chapel Hill. She argued that not only may DEQ consider cumulative impacts in its permitting decisions, but indeed it must.
Washington focused on Title VI of the Civil Rights Act of 1964, which bars racial discrimination by any agency that receives federal funding. DEQ receives money from the U.S. Environmental Protection Agency, which has said explicitly that its Title VI regulations apply to state permitting decisions.
Discrimination, she said, doesn’t have to be intentional. When a permitting decision has a disparate impact on communities of color, “whether the state agency intended that result is not as important,” she said. “What matters is the harm that results.”
When EPA investigates claims of disparate impacts, Washington told the board, it considers the cumulative effects of air and water pollution; health problems like asthma, cardiac disease, and cancer; nuisances like traffic, odor, and noise; and economic harms like depreciated property values.
“If these are the harms that EPA considers in investigating Title VI complaints of disparate impact in state-agency permitting,” she said, “then DEQ must consider these factors in their permitting program.”
DEQ’s own 2001 policy, which Washington said the agency never revoked, recognized its own authority to “address environmental equity in permitting decisions.”
Martin, the DEQ spokesperson, declined to comment on Washington’s presentation.
‘Completely understand the frustration’
When it issued the permit for the Lumberton plant this month, DEQ did address some of the issues raised at the hearing. For example, it imposed new testing requirements for certain hazardous pollutants. “I am encouraged by some of the changes,” says Anderson, the attorney for the conservation groups. “But given the compliance history of this facility, the community was really hoping they would just deny this permit. And I completely understand the frustration.”
Among those hoping for a denial was Donna Chavis, a Lumbee elder who lives in Robeson County and works for the nonprofit Friends of the Earth. A veteran of the EJ movement, Chavis has long been aware of the DEQ’s approach to permitting. Still, she called the hearing officer’s language illuminating.
“In this particular report, DEQ was much more blatantly open about how they see their role as it comes to cumulative and disproportionate impacts,” she said. “I’m a little leery about saying this, but what came to my mind was that DEQ is a partner in a kind of environmental apartheid. Ignoring the impacts on communities, for so many of us, is an indicator of lack of care and concern, not just for the environmental impacts, [but also for] the impact on humanity.”
Chavis knows these are strong words, and that there are good people working for DEQ. “I’ve met a lot of them,” she said. But she thinks the NCRP permit, which drew so many people to the virtual hearing, highlights the institution’s shortcomings. “The community that got so involved and so engaged — the statement this makes them is, ‘We don’t listen. It doesn’t matter what the evidence is, and what your thoughts are,’” she said. “‘It doesn’t matter.’”
Because NCRP’s new permit modifies a previous permit, it only runs until Aug. 31. The company has applied for a permit renewal. Chavis says she’s prepared to go another round.
