NORTH CAROLINA

• Groundwater contamination near animal factories is increasing, posing a potentially serious drinking water problem for residents living near hog and poultry factory farms.
  
  
• Eighty-eight percent of hog farms had at least one water quality violation, but the state has been unwilling to take enforcement action against the majority of them.
  
  
• Dissatisfaction with North Carolina's ineffective permitting system for factory farms led to a two-year moratorium on new and expanding hog factories, but hog production continues to grow because of loopholes in the law.

In 1991, Smithfield Foods, doing business as Carolina Food Processors, Inc., opened the world's largest hog slaughterhouse in Bladen County, slaughtering 24,000 hogs per day, 365 days a year.¹ Since that time, North Carolina has been the fastest growing swine-producing state in the country.² The number of hogs on North Carolina farms has soared from 3.7 million at the end of 1991 to more than 10 million today, catapulting the state from sixth to second in the nation in hog production.³ Most of this growth is concentrated in five counties surrounding the slaughterhouse.⁴

This growth caught North Carolina by surprise. The state Department of Environment, Health and Natural Resources (DEHNR) lacked a regulatory program for factory farms. Counties could not direct the growth, because the legislature amended the state zoning law in 1991 to prohibit counties from exercising their zoning authority over factory farms. With no regulatory structure and no mechanism for avoiding local land use conflicts, the industry's unfettered and explosive expansion has ruined residential property values and home-based businesses and undermined the confidence of many citizens in their government.⁵

Feedlot growth has also harmed an already impaired environment. Eastern North Carolina is experiencing major water pollution problems: excessive nutrients in coastal rivers and estuaries; algal blooms; eutrophication; massive fish kills and outbreaks of the toxic algae Pfiesteria piscicida (first discovered in North Carolina's estuaries).⁶ In 1997, Pfiesteria killed an estimated 450,000 fish in the state.⁷ While exact conditions that cause toxic Pfiesteria outbreaks are not fully understood, some of the factors that may contribute include warm, brackish, poorly flushed waters and high levels of nutrients such as nitrogen and phosphorus.⁸

The significant gains made by reducing municipal and industrial pollution have been offset by agricultural pollution, including runoff from hog production facilities. For example, in two of the state's largest coastal river basins -- the Tar-Pamlico River and the Neuse River -- land use models identify agriculture as the leading source of nitrogen and phosphorus, accounting for 76 percent and 56 percent, respectively, of these inputs.⁹

Pollution Problems

Surface Water Pollution

North Carolina's coastal plain is a labyrinth of rivers, streams, upland flats and wetlands. All waters wind slowly east, the majority emptying into the Albemarle and Pamlico Sounds, the nation's second largest estuary. The Outer Banks block this water from quickly reaching the ocean, creating shallow lagoons that serve as habitat for waterfowl and shellfish, and spawning and nursery grounds for many fish along the Atlantic seaboard.

Unhealthy levels of nitrogen and phosphorus have accumulated in the estuaries and sounds. Eutrophication, the process by which these substances over-enrich water and cause it to choke with algae, is accelerating in the estuaries.¹⁰ Algal blooms and fish kills have become more commonplace on the Tar-Pamlico and Neuse Rivers.¹¹ The pollution has been implicated in contributing to the occurrence of Pfiesteria, a microbe lethal to fish and toxic in humans.¹² (See glossary.) Symptoms reported by people who have been exposed to water or water vapor contaminated by Pfiesteria include skin irritation and lesions, gastrointestinal problems and memory loss.

A variety of sources contribute to the nitrogen and phosphorus pollution: municipal wastewater treatment plants, manufacturing discharges, urban runoff, golf courses, residential lawns, and agricultural land. Land use models show agriculture is the leading source, accounting for 56 percent of the pollution loads into the Neuse River estuary,¹³ and 76 percent into the Tar-Pamlico River.¹⁴

These models do not quantify the respective contributions of crop and animal agriculture. However, prevailing nutrient management practices implicate the swine production facilities as a primary source. Swine production in North Carolina is concentrated in the coastal plain. The industry's practice of centralizing swine production to maximize corporate profits results in the concentration of waste pollution in sensitive ecological areas. In several coastal counties, more animal manure is being produced than can be assimilated by the available land.¹⁵

The swine industry's practice of applying nitrogen- and phosphorus-rich manure to land as fertilizer increases the potential for polluted runoff into nearby streams. Under the recommended practices that the state has incorporated into its permitting program, farmers base the quantities of manure they spread according to the amount of nitrogen that can be taken up by crops. But by focusing on the nitrogen needs of cover crops, these recommended practices virtually ignore the fact that another longer-lived nutrient, phosphorus, is allowed to accumulate in the soil. Recent analyses demonstrate that most soils in North Carolina already contain excess phosphorus relative to plant needs, even with no phosphorus added.¹⁶ In eastern North Carolina, livestock raised in confinement produce significantly more manure than can be used. In short, the land's carrying capacity has been exceeded.

Also, most of the animal waste is applied to land during the spring and summer growing seasons. This is also the time when seasonal rains are frequent, heavy and unpredictable. When it rains, the drainage ditches serve as conduits for discharges from the pollution-laden soil into nearby wetlands and streams. No buffer zones are required between these ditches and fields that are sprayed with liquid manure, known as sprayfields.

An estimated 19 percent of nitrogen in animal manure is available to plants.¹⁷ However, this estimate can be misleading in a state like North Carolina, where the crop is consumed by cattle and excreted, rather than harvested. Commonly in North Carolina, Bermuda grass is the crop grown on the sprayfield, and cows are also grazed on the sprayfield. Under this system, approximately 90 percent of the nitrogen taken up by the plants and consumed by the cow is actually redeposited as cow feces and urine on the same sprayfield.¹⁸ Thus, the remaining nitrogen is simply cycled through the system, and is not actually removed.¹⁹

The practice of converting waterside, or riparian, vegetation to cropland may also exacerbate nutrient pollution. In North Carolina, sprayfields must be set back a mere 75 feet from rivers, streams and other bodies of water. But there is no requirement that the setback area be vegetated.²⁰ North Carolina's recommended agricultural best management practices suggest, but do not require, the use of vegetated buffers to minimize surface runoff into receiving waters. Yet several studies have shown that riparian buffers effectively remove nitrogen, if the buffer is wide and dense.²¹

Together with sprayfields, the construction of manure lagoons to store swine waste in floodplains and wetlands also threatens water quality. Until recently, no state or federal law prohibited the siting of animal waste lagoons and sprayfields within a 100-year floodplain -- a designation that estimates how high floodwaters will rise within a 100-year period for a specific floodplain. (State legislation enacted August 27, 1997, prohibits the new construction of lagoons within a 100-year floodplain; this legislation does not require that existing lagoons be removed from floodplains, however.²²) The problem of siting lagoons within the 100-year floodplain was vividly illustrated during the two hurricanes that crossed eastern North Carolina during the summer of 1996: aerial photographs documented scores of lagoons that had been washed over by floodwaters and innumerable sprayfields that had been scoured by the rising waters. When the floodwaters retreated into their streambeds, they took with them untold volumes of animal waste.²³

The practice of constructing confined livestock operations in wetlands is equally problematic. Many producers can avoid the permitting requirements and restrictions on construction in wetlands by taking advantage of a loophole in the Clean Water Act § 404 program. This loophole exempts agricultural land from compliance with the wetlands program if the wetland was drained and converted to agriculture prior to 1985.²⁴ Eastern North Carolina is riddled with wetlands known as pocosins and Carolina Bays. Many of these wetlands were converted to crop production long ago. Although the land was drained and crop production was successful, the land retains high water tables and general wetland characteristics.

Groundwater Contamination

Nitrogen and phosphorus from hog waste management systems enter the groundwater through two primary pathways: (1) seepage from animal waste lagoons and (2) leaching of contaminants through the soil after manure has been applied to the land. A study by scientists at North Carolina State University found severe seepage losses of nitrogen from more than 50 percent of the lagoons tested in the state.²⁵ Such losses pose a substantial threat to groundwater. Seepage can be reduced by using clay liners, but even clay-lined lagoons may leak "from several hundred to several thousand gallons per acre per day."²⁶

Nitrogen and phosphorus also percolate through sprayfield soils and contaminate the underlying aquifers. Scientists have documented high nitrate-nitrogen contamination in shallow aquifers underlying agricultural sprayfields in North Carolina.²⁷ Nitrogen, which is water soluble, is difficult to control, especially in humid, wet environments. While application of waste at agronomic rates at precise times during the cover crop's growing cycle reduces contamination, it cannot eliminate it. Furthermore, strict application at agronomic rates requires knowing the nitrogen and phosphorus composition of the waste. A survey of hog producers revealed that only 40 percent had tested the content of their waste before applying it to the land.²⁸

Concern about groundwater contamination led the North Carolina Department of Environment, Health and Natural Resources to investigate 1,595 drinking water wells located on property adjacent to hog and poultry production facilities. An August 1998 report documenting the well testing program shows that 10.2 percent of the wells tested were contaminated with nitrate above the current drinking water standard of 10 parts per million (ppm), and 34.2 percent of the wells tested exhibited nitrate levels in excess of 2 ppm or greater. Nitrate levels ranged as high as 110 ppm.²⁹ Nitrates in drinking water have been linked to "blue baby-syndrome," which deprives infants of oxygen, and to miscarriages in women.

The state's ongoing investigation during the past six months reveals that groundwater contamination is increasing. Wells previously tested and identified as "clean" now reveal high levels of nitrate. According to state inspectors, heavy winter rains have flushed the nitrogen out of the sprayfield soils and carried it into the shallow aquifer. The investigation concluded that a potentially serious drinking water problem exists for people utilizing private wells near animal production facilities. Based on the results of this investigation, the report's authors recommended mandatory groundwater monitoring as a condition of obtaining coverage under the state's general permit.³⁰

Air Pollution and Water Pollution via Atmospheric Deposition

The current regulatory structure also fails to address the atmospheric nitrogen impacts of agricultural activities in eastern North Carolina. Based on U.S. Environmental Protection Agency (EPA) estimates, in 1995 agriculture in eastern North Carolina was responsible for airborne emissions of 179 million pounds of nitrogen per year, as ammonia. Ammonia, a potent form of nitrogen, can trigger algal blooms and fish kills in coastal waters. Hog operations alone were responsible for 73 percent of these emissions (130 million pounds of nitrogen/year, as ammonia).³¹

To illustrate the impact of such emissions, the North Carolina Environmental Defense Fund estimated atmospheric deposition in the Neuse River basin. Assuming what goes up in the basin comes down in the basin, hog farms were estimated to deposit more than 2 million pounds of nitrogen per year to the Neuse Estuary. These deposits are almost equal to the nitrogen delivered into the Neuse estuary from wastewater treatment plants in 1995 (estimated at 2.1 million pounds of nitrogen per year).³² This additional loading is significant because the over-enrichment of nitrogen in the Neuse Estuary, and other coastal waters, has repeatedly resulted in algal blooms and fish kills.

The current hog waste lagoon/sprayfield treatment technique, which results in both volatilization of ammonia and polluted runoff, is incompatible with the nitrogen-sensitive coastal environment of eastern North Carolina. According to current scientific studies, at least 67 percent and perhaps as much as 95 percent of the total nitrogen produced by swine is actually volatilized as ammonia nitrogen.³³ Waste management techniques which optimize ammonia volatilization are simply not compatible with a healthy coastal environment.³⁴

Regulatory Climate

During the past several years, North Carolina's laws and regulations governing intensive livestock operations have been strengthened incrementally, culminating in the enactment of a two-year moratorium on new and expanded swine operations that have 250 or more hogs in the state.³⁵ This process has frustrated and angered all involved. The regulated community is frustrated by the lack of certainty and consistency in the laws. The public is concerned that the laws and regulations remain woefully inadequate to protect water quality and public health. Moreover, loopholes in the moratorium allowed approximately one million additional hogs to be permitted in the state.³⁶

North Carolina, like most other states, chooses to treat intensive livestock operations (and smaller feedlots with the exception of poultry facilities that generate dry litter) as "non-discharging" facilities for purposes of water pollution. If a facility is "certified" initially as complying with technical guidelines (e.g., lagoon size, sprayfield size), it is authorized to operate under a one-size-fits-all general "non-discharge" permit.³⁷

This regulatory structure is problematic for several reasons. First, by governing factory farms under general "non-discharge" permits, the state operates on the legal fiction that factory farms do not discharge pollutants. Consequently, the state does not monitor water pollution near factory farms and does not require farm operators to monitor it either. In contrast, facilities operating under discharge permits, such as municipal wastewater treatment plants and industrial dischargers, must actually monitor water quality and file regular discharge monitoring reports with the state to ensure that water quality standards are met. These reports are available to the public and allow citizens to assess compliance and initiate appropriate actions for non-compliance. Violations at these industrial facilities can be detected quickly, enabling prompt response, and promoting agency enforcement action as necessary.

Second, a general permit cannot, by definition, be tailored to address site-specific conditions. It is logical to assume that in an area with a high water table, manure application would need to be limited and groundwater monitored, or that a facility with a history of non-compliance would warrant more specific record-keeping requirements and more frequent inspections than a facility that was law-abiding. Such conditions could be written into an individual permit, but cannot be used to amend a general permit.

Third, the general permitting system allows the swine industry to avoid important public notice and hearing requirements, thereby excluding the public from participating in decisions that will affect their communities, their health, and their environment. As a result, low income and minority communities have been disproportionately affected by the swine industry's growth.³⁸ This regulatory structure, combined with the industry's exemption from traditional legal mechanisms³⁹ that protect the public -- such as common-law suits based on nuisance -- allows the swine industry to sully the state's environment.

The general permit requirements include waste management plans. While the plans are filed with permits and available for public review, the public has no say in the content of those plans. Moreover, the soil tests and other records that demonstrate compliance with the plans are kept by the grower⁴⁰ and unavailable to the public.⁴¹ Existing facilities are to be permitted on a schedule.⁴²

Until recently, regular inspections were not required, but in 1997 a program was established to inspect facilities twice a year, once by the Division of Water Quality for compliance and once by the Division of Soil and Water Conservation for technical assistance.⁴³

While intentional violations of the law are not commonplace, water quality violations are found on the best-managed facilities. The Southern Environmental Law Center reviewed the results of North Carolina's first-ever inspection of hog production facilities. The records indicated that 88 percent of the facilities had at least one violation of water quality laws and regulations noted on the inspection form. And, 9.6 percent of the facilities inspected had at least one serious water quality violation noted.⁴⁴ At the end of 1997, the state Division of Water Quality (DWQ) recorded 1,403 deficiencies and violations during inspections, yet initiated a mere 132 enforcement actions.⁴⁵ In the first half of 1998, the DWQ documented 1,087 permit deficiencies and violations at the 883 swine, cattle, and poultry operations it inspected. DWQ has not yet identified any enforcement actions for these violations.⁴⁶

In the past, the DWQ has suffered from inadequate staffing but the situation is beginning to improve. Prior to 1995, no staff were assigned to the permitting and inspection program, but as of 1996, there were 23 full-time equivalents, eight permitting and 15 inspection staff.⁴⁷

Local Control

After a prohibition on zoning controls over factory farms, in 1997 local zoning powers were partially restored.⁴⁸ Three counties have enacted zoning restrictions -- Chatham, Moore and Randolph. According to Michelle Nowlin of the Southern Environmental Law Center, other counties may be reluctant to impose local controls because sometimes industrial factory farm corporations threaten to sue counties that are considering such restrictions. For example, Craven County utilized its police power authority to impose a moratorium on factory farms. The county was sued by a factory farm corporation.⁴⁹ Although the moratorium was upheld by the courts, the battle was costly.

Primary interviewees for this chapter:

Michelle B. Nowlin
Southern Environmental Law Center
137 East Franklin Street., Room 404
Chapel Hill, NC 27514
Phone: 919-967-1450
Fax: 919-929-9421
e-mail: mnowlin@selcnc.org

Joseph Rudek and Dan Whittle
North Carolina Environmental Defense Fund
2500 Blue Ridge Road, Suite 330
Raleigh, NC 27607-6454
Phone: 919-881-2601
Fax: 919-881-2607
e-mail: dan_whittle@edf.org
joe_rudek@edf.org

Notes

1. NPDES permit for Smithfield Packing, Inc., d/b/a/ Carolina Food Processors (draft) (1998).

2. U.S. Department of Agriculture, Agricultural Statistics (1997).

3. North Carolina Agricultural Statistics Service (1991-1997); Raleigh, North Carolina; website: http://www.agr.state.nc.us/stats/

4. North Carolina Agricultural Statistics Service (1991-1997); Raleigh, North Carolina; website: http://www.agr.state.nc.us/stats/

5. Comments of Rep. Cindy Watts, North Carolina General Assembly, House Environment Committee Meeting (September 16, 1998); Palmist, et al., "Hog Operations, Environmental Effects, and Residential Property Values," 73 Land Economics (Feb. 1997); "People, Pigs and Politics: Cleaning up North Carolina's Swine Industry," (Southern Environmental Law Center, 1998).

6. JoAnn M. Burkholder, et al., "The Role of a Newly Discovered Toxic Dinoflagellate in Finfish and Shellfish in the Neuse River and Pamlico Estuaries," Project No. 50179, APES Report No. 93-08 (August 1993).

7. John Lang, U.S. Floating in Stinky Problem: Manure Pollution," Deseret News (April 19, 1998).

8. U.S. EPA, Office of Water Fact Sheet: "What You Should Know About Pfisteria Piscicida," Document No. EPA-842-F-98-011.

9. Neuse River Nutrient Sensitive Waters (NSW) Management Strategy (1997); Tar-Pamlico River Nutrient Management Plan for Nonpoint Sources of Pollution (1995).

10. M.A. Mallin, L.B. Cahoon et al., "Effect of Swine Waste Nutrients on Blackwater Systems: Field and Experimental Data," Project No. 70156, Water Resources Research Institute of the University of North Carolina (1997); H.W. Paerl, M.A. Mallin, et al., "Nitrogen Loading Sources and Eutrophication of the Neuse River Estuary, NC: Direct and Indirect Roles of Atmospheric Deposition," Report No. 291, Water Resources Research Institute of the University of North Carolina (1995); T.C. Jacobs and J.W. Gilliam, "Riparian Losses of Nitrate from Agricultural Drainage Waters," 14 J. Environ. Qual. 42 (1985).

11. Neuse River Nutrient Sensitive Waters (NSW) Management Strategy (1997); Tar-Pamlico River Nutrient Management Plan for Nonpoint Sources of Pollution (1995).

12. JoAnn M. Burkholder, et al., "The Role of a Newly Discovered Toxic Dinoflagellate in Finfish and Shellfish in the Neuse River and Pamlico Estuaries," Project No. 50179, APES Report No. 93-08 (August 1993).

13. Neuse River Nutrient Sensitive Waters (NSW) Management Strategy (1997).

14. Tar-Pamlico River Nutrient Management Plan for Nonpoint Sources of Pollution (1995).

15. J.C. Barker and J.P. Zublena, "Livestock Manure Nutrient Assessment in North Carolina," Proceedings of the International Symposium on Agricultural Food Processing Waste (1995).

16. Charles H. Lander, et al., U.S. Department of Agriculture, "Nutrients Available from Livestock Manure Relative to Crop Growth Requirements," Resource Assessment and Strategic Planning Working Paper 98-1, Map 6 (1998).

17. J.C. Barker and J.P. Zublena, "Livestock Manure Nutrient Assessment in North Carolina," Proceedings of the International Symposium on Agricultural Food Processing Waste, Chicago, Illinois (1995).

18. Remarks of Joe Rudek, Ph.D. Senior Scientists, North Carolina Environmental Defense Fund, in Hog Waste and Environmental Quality in North Carolina, A Report on the Save Our State Forum, Raleigh, North Carolina (June 11, 1998), pp. 46-47.

19. Presentation of Dr. Jerry Lemunyon, NRCS, at the NRCS Animal By-Product Utilization Workshop (September 1, 1998).

20. North Carolina General Statutes, § 106-803(a).

21. D.A. Hammer, et al., "Treating Livestock Wastewater with Constructed Wetlands," Constructed Wetlands for Water Quality Improvement, ed. G.A. Moshiri (1993); T.C. Jacobs and J.W. Gilliam, "Riparian Losses of Nitrate from Agricultural Drainage Waters," Journal of Environmental Quality (1985), Vol. 14, p. 472.

22. North Carolina State Law 1997-458.

23. Stuart Leavenworth, "Untreated Sewage Flows Through North Carolina Waterways," The News and Observer (September 13, 1996).

24. 33 C.F.R. § 328.3(a)(8).

25. R.L. Huffman and P.W. Westerman, "Estimated Seepage Losses from Established Swine Waste Lagoons in the Lower Coastal Plain of North Carolina," Transaction of the ASAE 38(2):449-453 (1995).

26. Correspondence from Dennis Ramsey, Department of Environment, Health and Natural Resources, to Karen Priest (May 19, 1997).

27. J.W. Gilliam, et al., "Contamination of Surficial Aquifers with Nitrogen Applied to Agricultural Land." Report No. 306, Water Resources Research Institute of the University of North Carolina (Nov. 1996).

28. Dr. John Winne, "Options for Managing Odor: A Report from the Swine Odor Task Force," North Carolina Agricultural Research Service, North Carolina State University (March 1, 1995).

29. Memorandum from Dr. Kenneth Rudo, Toxicologist to Dr. Dennis McBride, State Health Director, North Carolina Department of Environment, Health and Natural Resources (August 1998).

30. Memorandum from Dr. Kenneth Rudo, Toxicologist to Dr. Dennis McBride, State Health Director, North Carolina Department of Environment, Health and Natural Resources (August 1998).

31. North Carolina Department of Environment, Health and Natural Resources, Division of Air Quality, "Assessment Plan for Atmospheric Nitrogen Compounds: Emission, Transport, Transformation, and Deposition," Raleigh, North Carolina (1997).

32. Joseph Rudek, "Atmospheric Nitrogen Deposition and Ecosystem Health in North Carolina: A Public Perspective. Proceedings from Atmospheric, Nitrogen Compounds: Emission, Transport, Transformation and Deposition," Raleigh, North Carolina (1997).

33. North Carolina Department of Environment, Health and Natural Resources, Division of Air Quality, "Assessment Plan for Atmospheric Nitrogen Compounds: Emission, Transport, Transformation, and Deposition," Raleigh, North Carolina (1997).

34. Joseph Rudek, "Atmostpheric Nitrogen Deposition and Ecosystem Health in North Carolina: A Public Perspective. Proceedings from Atmospheric, Nitrogen Compounds: Emission, Transport, Transformation and Deposition," Raleigh, North Carolina (1997).

35. H.B. 515 and H.B. 1480.

36. Bob Williams, "Swine Numbers Swell Despite Moratorium," The News and Observer (September 30, 1998).

37. North Carolina General Statutes Section 143-215.10B.

38. Jonathan Raine, "Environmental Justice Issues of the North Carolina Swine Industry," Nicholas School of the Environment, Duke University, Masters Project (May 1998).

39. North Carolina General Statutes Section 106-701(A).

40. The Swine Waste Operation General Permit, Part III, Para. 5, North Carolina Environment Management Commission and the Department of Environment, Health and Natural Resources.

41. Because plans are not required to be given to the state agencies, the public has no way to request that the agencies make the plans available to them.

42. Conversation between Robbin Marks, NRDC and Ernie Seneca, Public Information Officer, North Carolina Division of Water Quality (October 23, 1998).

43. North Carolina General Statutes Section 143-215.10F.

44. Southern Environmental Law Center, Report on the North Carolina Division of Water Quality's Hog Farm Inspection Program (August 1, 1997).

45. Memorandum from Wayne McDevitt, Secretary, Department of Natural Resources, to Rep. Rick Eddins and Sen. Fountain Odom, Co-Chairmen, Environmental Review Commission, Re: Quarterly Status Report on Permitting and Inspecting Animal Waste Management Systems for Period Beginning October 1, 1997, and Ending December 31, 1997 (January 23, 1998) (Report also includes year-to-date totals for 1997.)

46. North Carolina Division of Water Quality, Status Report on Permitting and Inspecting Animal Waste Management Systems (July 1998).

47. Personal communication between Robbin Marks, and Ernie Seneca, Public Information Officer, North Carolina Division of Water Quality (October 23, 1998).

48. North Carolina General Statutes Section 153A-340.

49. Craven County Livestock Association et al., filed in U.S. District Court for Eastern District of North Carolina, No. 4-97-CV-57-H(1) (July 1997).