Hog farmers comply with rules but still get sued

The lagoon at a hog farm in Magnolia holds the feces and urine from hog growing barns. The effluent is periodically sprayed on fields of wheat, corn and soybeans.
The lagoon at a hog farm in Magnolia holds the feces and urine from hog growing barns. The effluent is periodically sprayed on fields of wheat, corn and soybeans. rwillett@newsobserver.com

Imagine you’re one of the hog farmers on the losing end of a recent nuisance lawsuit over odors coming from your farm. You fulfilled all the requirements of the state’s nuisance odor regulations and believed that if you were causing problems, the state would come to you as provided under those rules. Now you’re on the hook for tens of millions of dollars in punitive and compensatory damages unless the award is reduced or eliminated on appeal.

Imagine you’re former Gov. Mike Easley. As state attorney general, you negotiated an agreement with the hog industry in 2000 to fund research at N.C. State University to identify and develop cost-effective odor control technologies. It was a dramatic clean-up agreement of a burgeoning and valuable industry. You may be wondering why the result of this collaboration and your leadership is being ignored by a judge.

Imagine you’re me, the former secretary of the regulatory agency that oversees the state’s nuisance odor rules and someone who thought he understood what they meant. I’m concerned that either the current Department of Environmental Quality (DEQ) was not aware of complaints against these farmers, or the agency did not follow its own procedures and enforce its own rules.

Whoever you imagine you are, you would be wondering this: What just happened here?

Existing DEQ rules are very clear about how the agency is to respond when public complaints against hog farms are substantiated by specially trained odor investigators in the state’s Division of Air Quality (DAQ). The intent of that process is to eliminate nuisance odors. But instead, hog farmers are being hauled into court, their livelihoods and financial futures placed in jeopardy.

It’s as if the last 20 years never happened.

In 1998, armed with statutory authority from the General Assembly and technology being developed at N.C. State, DEQ wrote and promulgated rules to stop nuisance odors caused by hog farms. Thousands of farms were required, by mid-1999, to implement best management practices such as ensuring sprayed wastewater did not drift beyond the boundary of the animal operation. Should there be substantiated complaints, the rules imposed additional requirements, including installation of control technologies identified by N.C. State.

The DAQ initiated an outreach program that included a printed brochure, press release, and public hearings. The rule was, and still is, clear: “The owner or operator of a facility subject to this Rule shall not operate the facility without implementing management practices or installing and operating odor control equipment sufficient to prevent odorous emissions from the facility from causing or contributing to objectionable odors beyond the facility’s boundary.” To make clear this rule was aimed at nuisance odors, “objectionable odors” was defined in the rule in the same terms that nuisance odors are described by courts. North Carolina was, as the brochure stated, “among the first states to develop comprehensive rules for controlling odors from animal operations.”

Despite this extensive regulatory regime, it appears a judge can ignore these requirements entirely. That’s what a federal judge appears to have done in August. To know for sure, we must learn whether neighbors of the targeted farms complained to DEQ, whether DEQ sent their trained odor inspectors to investigate, whether the farms were cited for violating the rules, and whether additional controls were imposed on the farms to prevent odors.

If the regulations and process were followed as required by law, then why did this go to court? If the law was ignored, we should know why and at whose direction. Gov. Easley, N.C. State, and DEQ/DAQ regulators deserve to know the full story. Most importantly, our state’s hog farmers deserve to know whether compliance with state regulations has any meaning at all.

Donald van der Vaart is a senior fellow at the John Locke Foundation and the former secretary of the North Carolina Department of Environmental Quality.