Category Archives: Waste

Other 2023 N.C. Environmental Legislation

December 19, 2023. The previous post covered significant water quality legislation enacted by the North Carolina General Assembly in 2023. This post briefly summarizes other 2023 environmental legislation.

AIR QUALITY. The legislature put two provisions in the Appropriations Act of 2023 (House Bill 259) to prevent state agencies from adopting rules intended to reduce emissions of greenhouse gasses such as carbon dioxide (CO2) in the state. Other air quality provisions expedite permitting and construction of new or expanded sources of air pollutants.

Prohibit cap and trade programs for CO2 emissions.  House Bill 259, Sec. 12.5,  prohibits any state agency  from requiring electric utilities to participate in a cap and trade program for CO2 emissions. The provision targeted proposed state rules that would have required N.C. electric utilities to  participate in a multi-state cap and trade program (the Regional Greenhouse Gas Initiative) to reduce CO2 emissions. For more on the proposed RGGI rules see an earlier post.   The broadly written 2023 provision prohibits any state cap and trade program for reduction of greenhouse gas emissions from electric utilities.

Prohibit emission standards for new vehicles. A new statute section, G.S. 143-215.107F, prohibits adoption of emissions standards for new motor vehicles including rules intended to increase the number of zero-emission vehicles in North Carolina. The legislation responds to Governor Cooper’s Executive Order 271 which directed the Department of Environmental Quality (DEQ) to  draft rules modeled on  California’s Advanced Clean Truck rule. The California ACT rule requires truck manufacturers to gradually  increase the percentage of zero-emission medium and heavy duty trucks sold in that state over several years.  N.C. DEQ had already completed draft clean truck rules and a regulatory impact analysis estimating the economic costs and benefits of the proposed rules as required by EO 271.  The rules had not yet been presented to the Environmental Management Commission (EMC) to begin the rulemaking process.

The economic impact analysis  for the draft North Carolina clean truck rules showed a significant net economic benefit to the state. The analysis considered two alternative timelines for zero-emission truck goals. Earlier implementation resulted in a net economic benefit to the state of $175.6 million to  $880.5 million (depending on a range of estimated health benefits). Beginning implementation a model year later resulted in a net benefit of $162.3 million to $865.9 million.

Limit the vehicle emission inspection program. Some background — As required by the Clean Air Act, North Carolina has a State Implementation Plan (SIP) for ozone pollution describing how the state will meet the federal ozone standard.  N.C.’s  ozone SIP counts pollution reductions associated with identifying and correcting faulty vehicle emission systems toward meeting the standard. The  U.S. Environmental Protection Agency (EPA)  approved N.C.’s current ozone SIP based on vehicle emission inspections in 19 N.C. counties. The SIP included counties in the emissions inspection program based on the potential for vehicles registered in those counties to contribute to an exceedance of the ozone standard.

The 2023 state law directs DEQ to eliminate emissions inspections in 18 counties and request  EPA  approval of a revised ozone SIP that only requires emissions inspections in Mecklenburg County. The impact of a revised SIP on North Carolina’s ability to meet the ozone standard statewide will likely turn on factors such as the declining percentage of vehicles with older emissions control equipment and increases in low or zero emission vehicles. The law allows one year for DEQ to submit the revised SIP to EPA for approval; EPA then has 18 months to approve or disapprove the revised SIP. Emission inspections will continue to be required  in all 19 counties until EPA approves a revised SIP.

Allow expansion of existing air emissions source without prior permitting. Another provision in House Bill 259 amends G.S. 143-215.108A to allow “the construction (but not operation) of a new air contaminant source, equipment, or associated air cleaning or emissions control devices prior to permit issuance”.  The provision includes exceptions for sources requiring a Prevention of Significant Deterioration (PSD) permit; those covered by specific Clean Air Act sections regulating hazardous air pollutants; and sources in non-attainment areas. Even with the exceptions, it is not clear the provision allows the state to fully comply with Clean Air Act permitting obligations.  Allowing construction of a pollution source without prior review also creates a risk that the facility will invest in equipment that does not meet standards necessary to be permitted for operation.  That creates the  related risk that state permitting staff will be pressured to approve air pollution emission sources  that do not meet operating standards because of the prior investment.

Salary bonuses based on quick processing of Title V permits. Another budget provision creates a program to give salary bonuses to DEQ air quality permitting  staff who process Title V air quality permit applications within specified time frames.  The provision raises ethical questions given the creation of financial incentivizes for permit staff to approve permits more quickly. In  recognition of that concern, the provision directs the EMC  to adopt quality control standards to ensure permit decisions comply with the law. The obvious quality control standard will be consistency with permitting processes and air quality standards. The question will be how to provide adequate oversight of DAQ permit writers to ensure that incentives for quick permit action do not undermine adequate permit review and result in flawed permit decisions.

The  bonus provision doesn’t neatly align with existing Title V permitting practices in North Carolina. The legislation is written as if each facility’s Title V permit application (or renewal) is handled by an individual permit writer as part of a single facility-wide permit review. In reality, the Title V permitting process has adapted to industry needs by dividing review of multiple pollution sources at a single facility among  permit staff who specialize in those sources and associated pollution controls. Review of the different pollution sources can also move on different tracks, allowing some to be approved more quickly than others. It remains to be seen whether shifting to the model of permit review necessary to implement the bonus program (review of all sources at a facility in a single review) will actually benefit  permit applicants.

The new provision gives the EMC authority to exclude an individual DAQ employee from the bonus program based on  overall permitting performance. Doing so would have implications under state personnel law that have not yet been discussed.

Set permit processing times for Title V permits. House Bill 259, Section 12.11,  also amends G.S. 143-215.108(d)(2) to set new timelines for DAQ to act on an application for modification of  a Title V permit. The law now requires DAQ to issue, deny or publish for public comment a complete application for a  minor modification of a Title V permit within 90 days. It requires DAQ to issue, deny or publish for comment a complete application for a major modification of a Title V permit within 270 days.  The provision also repeals language in G.S. 143-215.108 that extended the time allowed to act on a Title V permit if the EPA Administrator objected to issuance of the permit.

Create Title V permit exemption for “non-major” research and development activities. Another  provision in Sec. 12.11 directs the EMC to create a Title V permit exemption for “non-major research and development activities”  consistent with a 1995  EPA  white paper on streamlining Title V applications.  In part, the white paper describes how permitting agencies should evaluate a research and development activity under Title V. The paper reflects EPA’s  assumption that many  R & D activities are independent of manufacturing operations and standing alone would not be major pollution sources that would trigger Title V permitting. But the paper also notes that R & D  activities co-located with manufacturing and contributing to the facility’s total air emissions would need to be included in the Title V permit. In other words, the paper doesn’t create an exemption; it describes how permitting agencies should apply Title V  to different types of R & D facilities.

The language of the new state provision misses the nuance of the white paper and requires the EMC to develop a Title V exemption for research and development activities. On the other hand, it directs the new EMC  rules to include “allowance levels and minor permit modification thresholds” that would allow a permitted Title V facility to cover R & D activity by giving DAQ notice of a minor permit modification. That language seems to describe a streamlined process for modifying a Title V permit rather than a Title V permit exemption. The EMC will need to sort out the actual intent of the law in the rulemaking process.

SOLID WASTE

Disposal of lithium- ion batteries. House Bill 600, Section 19, amends G.S. 130A-309.10(f) to prohibit landfill disposal and incineration of lithium-ion batteries. The legislation also directs DEQ to study whether it is appropriate to allow landfill disposal of some lithium-ion batteries based on the size of the battery.

Disposal of photovoltaic cells and components. The same section of House Bill 600 amends G.S. 130A-309.10 by adding a new subsection that prohibits disposal of photovoltaic cells in an unlined landfill. Under the new provision, all photovoltaic cells and  components that cannot be recycled must be disposed of in a lined municipal or industrial landfill rather than an unlined construction and demolition debris landfill.

GENERAL

Require permits to include statutory or regulatory authority for conditions. House Bill 600, Section 13, adds a new statute section (G.S. 143B-279.4A) requiring DEQ to include in every permit the statutory or regulatory authority for each permit condition. Since the new statute provision has been added to  Chapter 143B (which describes DEQ’s responsibilities as a department), it appears to apply to all DEQ permitting programs.

Prohibit denial of a permit based on failure to obtain another permit, authorization, or certification.  House Bill 259, Section 12.10, adds a new statute section (G.S. 143B-279.18) that prohibits DEQ from denying a permit based on the permit applicant’s failure to obtain another permit, authorization or certification unless that is required by state or federal law.  This provision also appears to apply to all DEQ permit decisions.

Define “administratively complete” for purposes of permit review. Another provision in House Bill 259 adds a definition of “administratively complete” to G.S. 143-213 to describe a permit application that is sufficiently complete to trigger permit processing timelines in statute:

(1) The term “administratively complete” means that all information required by statute, regulation, or application form has been submitted to the Department for the purpose of processing a permit application.

The definition applies wherever the term is used in Chapter 143 Article 21 (Water and Air Resources), Article 21A (Oil Pollution and Hazardous Substance Control), and Article 21B (Air Pollution Control).

Action: 2019 Budget

July 9, 2019. The 2019 legislative session got off to a very slow start. Few bills moved  before the May 9 deadline for substantive bills to pass one chamber of the legislature to stay alive. The pace picked up in the last month as both the House and Senate passed versions of a budget bill (House Bill 966)  and then agreed on a final budget. Governor Cooper immediately vetoed the budget bill for reasons unrelated to environmental provisions. (The Governor’s veto statement  criticized the legislature’s budget priorities; refusal to expand the state’s Medicaid program had been one sticking point.) This blogpost looks at some of the environmental provisions in the budget.

Funding Related to Emerging Contaminants Such as GenX.

♦ Reallocation of state funding appropriated in 2018 to extend water lines in areas with well contamination caused by GenX. In 2018, the legislature allocated $2 million to DEQ’s Division of Water Infrastructure to help local governments extend water lines to properties affected by contamination caused by per‑ and poly‑fluoroalkyl substances (PFAS) including GenX.  Section 12.13 of the  2019 budget bill  reallocates those funds for a number of projects unrelated to PFAS. In February 2019, Chemours entered into a settlement agreement  with DEQ that requires the company to provide a replacement water supply to any person whose well has PFAS contamination above the health advisory level. Under the agreement, the replacement water supply means connection to a public water system unless the well owner declines or DEQ finds it would be prohibitively expensive or unsafe.

♦ Additional funds to address emerging contaminants through water quality permitting. The budget funds five new positions in DEQ to address emerging contaminants. The positions include two new engineers to work on issuance and renewal of Clean Water Act wastewater discharge permits.

State Funding to Eliminate a Conservation Easement and Buy Back Mitigation Credits.   In an unusual (and unprecedented) provision, the legislature earmarked over $800,000 to eliminate a conservation easement on a completed stream restoration project.  The project, restoration of Little Alamance Creek in Burlington, was completed in 2012-2013. The creek had impaired water quality; the restoration project, which included replanting stream bank vegetation, was designed to improve water quality in the creek. The stream restoration project also generated mitigation credits intended to offset the stream impacts of N.C. Department of Transportation (NCDOT)  road construction projects. (Federal and state water quality permits often require the project developer to offset stream or wetland impacts by funding restoration of similar natural resources.)

The City of Burlington donated property for the conservation easement, which runs through a Burlington city park, but later had both aesthetic and public safety concerns about the completed stream restoration.  According to city staff, trees planted along the stream had not overtaken the shrubby undergrowth as expected. City officials were unhappy with the appearance of revegetated stream bank and worried that the vegetation provided cover for criminal activity.

The  budget provision requires DEQ to dissolve the conservation easement on Little Alamance Creek and reimburse funds used to purchase mitigation credits generated by the project. If NCDOT received mitigation credits from the Little Alamance Creek project as expected,  the department will have to buy  mitigation credits from other stream restoration projects to stay in compliance with its road construction permits. In that case, taxpayers will have paid for the mitigation credits twice since there is no possibility of recovering funds already spent on restoration of Little Alamance Creek. If a private developer received any of the credits generated by the project, the state buyback would be used to replace the developer’s credits. The cost is significant; the budget appropriates $837,755.00, but also directs DEQ to draw on other department funds if the actual cost exceeds the amount appropriated.

Removal of the conservation easement may allow the City of Burlington to alter the stream bank vegetation. It isn’t clear whether the city has a specific plan or what impact the changes will have on the stream’s water quality.

Delay Update of  State Water Quality Permits for Large Animal Operations. One of the policy provisions in the budget delays renewal of the water quality permit that covers most large animal operations. DEQ had completed a nearly year-long process to update and reissue the state water quality permits for large animal operations, including swine farms. The general permits set operating conditions for different categories of farms to protect surface water and groundwater from contamination by animal waste. The recently finalized general permits included some new or modified conditions, including a requirement for swine farms to monitor groundwater quality around waste lagoons located in the 100-year floodplain.

The N.C. Farm Bureau filed an appeal to challenge some of the conditions on the new general permits. In Section 12.19, the budget bill prevents DEQ from covering farms under the new general permits until 2020.   In effect, the bill delays enforcement of any new conditions and allows farms to continue to operate under the old permits while the N.C. Farm Bureau pursues its appeal.

During the delay, the budget provision directs DEQ to study whether water quality general permits should be adopted under the rule making procedures in the state’s Administrative Procedures Act. Note: As a practical matter, the process DEQ used to develop and finalize the general permits exceeded the basic public notice and hearing requirements of the APA.

Hurricane Florence: Deja Vu All Over Again

September 23, 2018.   A serious storm accompanied by flooding has many environmental impacts and most are all too familiar to North Carolina from past storms.  Once the immediate rescue phase has ended, the Department of Environmental Quality (DEQ)  has a larger role in hurricane response than the public may realize. Some of the environmental challenges:

♦  Disabled water treatment and wastewater treatment systems. Large storms can disable environmental infrastructure like water and sewer systems because of lost power, inundation by flood waters or runoff overwhelming the sewage collection system. Any of those impacts can result in release of contaminants, including untreated sewage.

♦  Disposal of storm debris.  Wind damage and flooding creates a huge volume of storm debris: downed trees; construction debris; drywall and flooring removed from flooded homes; sodden carpet; ruined furniture and appliances; animal carcasses; and hazardous materials like paint, solvents, pesticides and other chemicals. Debris from older structures may contain asbestos. DEQ’s Division of Waste Management (DWM) works with local governments to pre-approve new landfills for vegetative waste and non-hazardous construction debris before a storm hits.  But hazardous materials damaged or uncovered by the storm can complicate and slow debris removal because those materials need to be separated for disposal. Improper disposal of hazardous materials can cause groundwater or surface water contamination; burning hazardous materials with other debris may expose nearby residents to dangerous air quality conditions and create a risk of explosion.  Failing to separate and properly dispose of hazardous materials also has a cost;  the Federal Emergency Management Agency (FEMA) will not  reimburse the state for debris collection and disposal that violates federal hazardous waste laws. Unfortunately, storms never sort debris and efforts to clean out flooded homes often create piles of trash that include both hazardous and non-hazardous materials.

♦  Release of contaminants from landfills and dumps (legal and illegal) inundated by floodwaters; spills from above-ground and underground petroleum storage tanks; and releases from other types of chemical storage facilities.  The U.S. Environmental Protection Agency (EPA) emergency response program works with the state DWM and Division of Water Resources (DWR) to  respond to these environmental incidents.

♦ Clearing debris from rivers, streams and drainage ditches.  Large storms also deposit downed trees, limbs, and other debris into streams, rivers and drainage ditches obstructing flows.  Removal of debris from streams and rivers  may require a federal permit under Section 404 of the Clean Water Act. (Any method of removal that would disturb the stream bottom or riverbed requires a permit.) The U.S. Army Corps of Engineers issues the Section 404 permits, but  state water quality and coastal management staff also have a role and frequently help determine whether the permitting requirements apply to a particular stream or drainage feature. DEQ provides a guidance document on stream clearing to help citizens understand how to do the work without violating federal rules.

♦  Animal waste. Updated information on swine waste lagoons (as of noon on September 22, 2018):

Animal Operations – Swine Lagoons

Category Total # Facilities/Lagoons
Structural Damage 5 facilities/5 lagoons
Discharges (Overtopping) 28 facilities/34 lagoons
Inundation, no indicated discharges 7 facilities/9 lagoons
Freeboard 0″ 10 facilities/12 lagoons
Freeboard 0-3″ 25 facilities/35 lagoons

The table above comes from DEQ’s Dashboard. The first category, waste lagoons with structural damage, need repair to stop the release of swine waste through the damaged  lagoon wall. Lagoons that are overtopping (the second category) have been inundated by flood waters and are spilling wastewater mixed with floodwater over the top of the lagoon wall. The other three categories describe swine waste lagoons that are full or nearly full, but not actively releasing wastewater to the environment.

All of these lagoons (and an unknown number of additional lagoons with only slightly more storage capacity) may continue to be a concern for weeks or months beyond the storm. The problem is this:  the entire swine waste management system depends on the ability to regularly spray wastewater from the lagoon onto a crop as fertilizer. Spraying down the lagoon level makes room for storage of new waste coming from the hog houses.  State permits for lagoon and sprayfield systems limit spraying to the amount the receiving crop can use as a nutrient (to avoid contaminating groundwater with excess nitrogen or phosphorus) and prohibit spraying swine waste on already-saturated ground to avoid runoff.  Under those permit conditions, spraying down lagoon levels may not be possible for some period time after the storm has ended because surrounding agricultural lands remain saturated.  In the past, the tension between a need to lower lagoon levels to prevent additional breaches and the environmental impact of spraying wastewater on saturated soil has led to some difficult and controversial policy decisions. Farms have also sometimes needed to remove animals for a period of time because of the lack of waste storage capacity.

Although poultry operations get less media attention than the swine farms, flooding also sweeps poultry waste into floodwaters and creates similar problems for post-storm land application of poultry waste onto agricultural fields.

Coal ash releases. Historically, much of the coal ash produced by coal-burning power plants in N.C. has been disposed of in open ponds that work on the same principle as the swine waste lagoons – solids go to the bottom of the pond and water levels are lowed periodically by pumping from the top layer of water. The difference is that Duke Energy has Clean Water Act permits allowing discharge of water from the top of the coal ash ponds into a nearby river, lake or stream.  Permit conditions  limit the volume to levels that will not cause a violation of water quality standards in the water body receiving the discharge. Hurricane Florence has already caused a significant breach in the dam separating Sutton Lake from the Cape Fear River. The lake receives a wastewater discharge from the Sutton plant’s coal ash pond. DEQ has also documented erosion/wash-out of coal ash from older, now vegetated coal ash basins at the Lee Plant (Goldsboro). DEQ has posted video of the Sutton site and photographs of washover from the Lee ash basin on the Dashboard coal ash page.

Going forward, the question will be what kind of repair/restoration/remediation may be required to address the coal ash releases.

Disposal of dead animals. Disposal of a large number of animal carcasses following a storm has environmental implications, but falls under the responsibility of  the State Veterinarian in the Department of Agriculture and Consumer Services. To date, the Agriculture department has reported over  3 million poultry and more than 5,000 swine killed by Florence and those numbers may rise.  Under state law (G.S. 106-403), dead animals can be buried under three feet of soil or disposed of in any other way approved by the State Veterinarian.  Some of the alternative disposal methods used in the past include composting (particularly of poultry); rendering for use in animal feed; and incineration.  In the past, burial has raised  concern about potential for groundwater contamination since many of the large animal operations affected by flooding are located in southeastern counties with naturally high water tables.   Although G.S. 106-403 requires a burial site to be at least 300 feet from a  “flowing stream or other public body of water”, the law doesn’t expressly take groundwater impacts into consideration.

Dam failures and landslides.  DEQ’s Division of Energy, Mineral and Land Resources responds to dam safety emergencies and oversees repair/reconstruction work under the state’s Dam Safety Act. The same division has a role in responding to landslides. Heavy rains associated with Florence caused several landslides in mountain counties that closed roads, but thankfully did not cause any deaths.

Rebuilding.  Looking beyond storm response and cleanup, rebuilding in coastal areas becomes a significant permitting challenge for state water quality and coastal management agencies.  Once floodwaters recede,  staff in the state Division of Coastal Management (DCM) helps FEMA do initial damage assessments to distinguish repairable buildings from those that have more than 50% structural damage and require reconstruction. Some number of the  heavily damaged/destroyed  structures will  raise  policy issues about whether or  how to allow rebuilding.  Older, “nonconforming”  structures that did not meet current building code, zoning or coastal development rules before the storm may  not be able to meet those standards to rebuild.  Some of the most difficult post-storm reconstruction decisions involve buildings that cannot meet current stream buffer or oceanfront setback requirements.

DCM uses special emergency permits developed in response to past storms to allow routine reconstruction to begin quickly. The emergency permits cover reconstruction of buildings and accessory structures (such as docks) that can be rebuilt in their previous location and within the same footprint.

Update note: The original blogpost has been revised to clarify that the dam between Sutton Lake and the Cape Fear River breached rather than the coal ash pond.

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.

Protecting Agriculture v. Protecting Property Rights

June 18, 2018.  Last year, Session Law 2017-11  limited the compensation a property owner could recover for nuisance conditions caused by an agricultural or forestry operation. Last week, the N.C. legislature significantly rewrote North Carolina’s “Right to Farm Act” in Senate Bill 711 to all but eliminate a property owner’s ability to protect their property from being devalued because of nuisance conditions caused by large swine operations.  (Although the bill covers all types of agriculture and forestry operations, it clearly represents an additional and more extreme response to potential nuisance lawsuits against North Carolina swine farms.)

“Nuisance” means interference with the use and enjoyment of another person’s property.  Last year, a group of North Carolina residents won several million dollars in damages in nuisance cases against swine farms based on conditions such as odor, pests, and exposure to ammonia emissions that caused health problems and restricted outdoor activities on their property. See an earlier post for more background on the lawsuits. Historically, North Carolina case law has also recognized nuisance claims based on injury to a business and health problems caused by a nuisance condition.

In response to the nuisance lawsuits against swine operations, Session Law 2017-11 limited the kind of compensation that a person could receive in future nuisance cases to loss of fair market value or fair rental value of their property.  The law effectively eliminated the ability to get compensation for other types of injury such as  business loss, although the law did not bar additional damages if the plaintiff could prove negligence, trespass or personal injury.

Senate Bill 711 takes the much bigger step of making nuisance lawsuits against agricultural operations all but impossible. It also seems to  turn the concept of “Right to Farm” on its head. “Right to Farm” laws (adopted in nearly every state)  protect  farms  from nuisance claims by people who  buy property near an existing farm because they presumably  bought with knowledge of the agricultural activity.  North Carolina has had a “Right to Farm” law since 1979.  Under that law (G.S.  106-701), an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around the farm.     In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

“Right to Farm” becomes “Right to Create a Nuisance”.  Senate Bill 711 reverses the entire concept of “Right to Farm” laws to protect the ability of agriculture operations to change, grow, and increase their impact on nearby property owners and residents. Under the bill,  a  property owner loses the right to sue a  farm for nuisance conditions that interfere with use of their property unless they file the lawsuit within the first year after the farm begins operation or within one year after there is a fundamental change in the farming operation. The Catch-22 in the bill is that “fundamental change” does not include:

(1) A change in ownership or size of the farm.

(2) An interruption of farming for a period of no more than three years.

(3) Participation in a government-sponsored agricultural program.

(4) Employment of new technology.

(5) A change in the type of agricultural or forestry product produced.

The Impact on Property Rights.  Under S711,  people who live or have a business near any agricultural operation will find their ability to protect  use and enjoyment of  their property severely limited.  A person who owns property near a soy bean farm  could not bring a nuisance lawsuit if the farm  becomes a large animal operation a year later that produces odors, pests, ammonia emissions or other impacts interfering with use of their property. Under the new law, that property owner waived the right to sue based on the nuisance conditions because they failed to complain about an entirely different kind of farm that did not have the same impacts.
The restrictions on nuisance  lawsuits against agricultural and forestry operations are also unique to those land uses. A property owner who suffers from nuisance conditions as a result of a manufacturing plant does not face the same restrictions on seeking compensation.
Status. The bill has been sent to Governor for signature or veto.

2017 NC Legislative Session in Review: The Budget

July 16, 2017. A few notes on the final state budget which became law following legislative override of the Governor’s veto.

Funding for Environmental Protection Programs. The final budget continues a 7-year trend of annual reductions in environmental protection programs. (See an earlier post  describing the impact of those earlier reductions.) The most significant new cuts to programs in the Department of Environmental Quality (DEQ)  affect:

     Energy Programs. The budget takes almost $1 million from energy programs. The budget reduces pass-through funding for university-based energy centers from around $1 million to a total of $400,000 divided equally between centers at Appalachian State University and North Carolina A& T University. North Carolina State University’s Clean Energy Technology Center will receive no funding. The budget also eliminates 3 of 5 positions in DEQ’s Energy Office.

     Regional Offices/Division of Environmental Assistance and Customer Service.  DEQ’s seven   regional offices house frontline permitting, compliance and technical assistance staff for multiple environmental programs including water quality, water resources, air quality and waste management. Since 2011, the legislature has made the regional offices a particular target  for reductions in positions and funding. The 2017 budget reduces appropriations supporting DEQ’s  Division of Environmental Assistance and Customer Service by $500,000 and requires DEQ to meet the cut in part by eliminating one position in each of the seven regional offices. The Division of Environmental Assistance and Customer Service is a non-regulatory program that provides technical assistance to businesses on water conservation, energy efficiency, waste reduction and other measures to improve environmental compliance.

Conservation Funding. Most funding for conservation programs, such as the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund now go through the Department of Natural and Cultural Resources budget. The Department of Agriculture and Consumer Services also manages some conservation funds through the Farmland Preservation Trust, which purchases conservation easements on agricultural lands. Conservation funding in both departments generally remained stable. The legislature increased funding for the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund, earmarking a combined  $1 million of the increase for an acquisition project on Archer’s Creek (Bogue Banks). The budget also allocates an additional $2.6 million to the Wildlife Resources Commission for acquisition of gamelands and an additional $2 million to the Farmland Preservation Trust Fund.

Surprisingly, the budget did not include state funds to match a federal Department of Defense (DOD) challenge grant of $9.2 million to acquire conservation lands to provide buffers around military installations. DOD announced award of a Readiness and Environmental Protection Integration (“REPI”) grant to North Carolina earlier this year for acquisition of buffers around the Dare County Bombing Range and endangered species habitat near Camp Lejeune.  The federal award  anticipated a state contribution of an additional $10.1 to be put toward the projects.  The final state budget failed to earmark any funding for the state match. The  Clean Water Management Trust Fund and other state conservation agencies could provide some  of the state match, but in the absence of a legislative earmark the REPI projects would be competing with other applications for those grant funds.

Special provisions. As usual, the budget bill (Senate Bill 257 ) includes a number of “special provisions” that  change existing law. Those include:

     Air quality. The budget allows DEQ to use fees from automobile emissions inspections to support any part of the air quality program. Previously, inspection fee revenue could only be used to implement the automobile inspection and maintenance program. In the past, the legislature has tilted toward keeping inspection and maintenance fees as low as possible while still providing adequate reimbursement to inspection stations. The 2017 provision  divorces the fees from the needs of the vehicle inspection and maintenance program for the first time.

The budget also requires legislative approval of DEQ’s plan to use approximately $90 million the state will receive from the Environmental Protection Agency’s  national settlement of an air quality enforcement case against Volkswagen.  (The case concerned  VW’s installation of software to defeat vehicle emissions control systems.) Funds from the settlement will be divided among the states and must be spent for purposes specifically allowed under the EPA settlement agreement.  The agreement gives states a number of options and the legislature clearly wants to influence DEQ’s decision about use of the funds.

     Solid Waste. The budget shifts $1 million from a fund for assessment/cleanup of contamination caused by old, unlined  landfills to the City of Havelock to be used for “repurposing” property previously owned by a recycling company.  (See Sec. 13.3) Phoenix Recycling operated on property just beyond the city limits, but closed in 2000 as a result of environmental violations.  In 2012, the City of Havelock received a state grant to assess environmental contamination on the property. In 2015, Havelock’s city manager advised the town council that if the city acquired the property, it could be eligible for up to $550,000 in federal “Brownfield” grant funds under an EPA program to support cleanup and redevelopment of contaminated sites.  In 2016, the city acquired the property and annexed it into the city.  It isn’t clear whether the city ever applied for the federal Brownfields grant. The 2017 budget provision would instead provide state funding for redevelopment of the property. A Progressive Pulse blogpost provides a good overview of how the earmarking of these funds for the Phoenix Recycling property will reduce funds available to cleanup other, higher priority contaminated sites.

Another provision (Sec. 13.4) allows the owner of an old, unlined landfill site to exclude the property from a state program to cleanup contamination  from  “pre-1983” landfills.  (Modern standards for solid waste landfills went into effect in 1983).  Under the provision, the owner can remove property from the state cleanup program by accepting liability for any contamination and providing financial assurance to address contamination. Financial assurance would not be required if the landfill had received solid waste from a local government (which was often the case). This is a very odd provision in several ways:

♦ Under current law, DEQ has responsibility for assessment and cleanup of pre-1983 landfill sites;  revenue from a statewide solid waste disposal tax pays for the remediation. Under the new provision, a property owner would  waive state responsibility for cleanup and potentially accept environmental liability they might not otherwise have.

♦ The provision has not been restricted to sites that present a low environmental  risk; the only limitations seem to be the property owner’s willingness  to take on the liability and ability to provide financial assurance if required.

♦ The provision describes the opt-out as a “suspension” of the state cleanup program for as long as the person owns the property. That clearly means the state itself would not undertake any assessment or cleanup activity on the site, but the law does not suspend enforcement of state groundwater standards and other environmental remediation requirements. Those programs normally seek remediation by the person(s) responsible for the contamination; under the new provision, the property owner  must volunteer for the liability whether they contributed to the contamination or not.

♦  The implication of a “suspension” is that the state may again have responsibility for the site if it changes ownership in the future. Suspending environmental remediation until a change of ownership could simply delay necessary cleanup activities without regard to environmental risk.

It isn’t clear why a property owner would ever choose to do this.

The budget bill also requires a study of DEQ’s use of revenue from the solid waste disposal tax. The opt-out in Section 13.4  may be a hint of additional changes to the solid waste disposal tax and the state cleanup program for pre-1983 landfills.

     Water Quality: Nutrient Pollution.  The (now annual) budget provision concerning nutrient management strategies directs DEQ to use $1.3 million to test use of algaecides and phosphorus-locking technologies as an alternative to state rules imposing tighter wastewater limits and stormwater controls to address excess nutrients  in  Falls Lake and Jordan Lake. Those rules have been temporarily suspended by the legislature.  (For background on the nutrient rules, see a previous post;  the proposal for an automatic sunset  of the nutrient rules described in the earlier  blogpost was ultimately replaced by legislation further delaying implementation of the rules and a university-based study.)  Based on discussion in committee, legislators had a specific technology developed by a North Carolina-based company in mind.

“Aerosolizing” Landfill Leachate

May 19, 2017.   A bill under consideration by the N.C. General Assembly,   House Bill 576 , requires the Department of Environmental Quality (DEQ) to allow “aerosolization of leachate and wastewater as an acceptable method of site management” at a lined municipal solid waste landfill and gives DEQ discretion to allow the practice at unlined landfills.  The bill passed the N.C. House and has been sent to the Senate.

A definition of terms.

“Leachate” is the liquid produced by water (including rainfall) percolating through landfilled waste. State rules require landfills to contain leachate onsite or treat the leachate before discharging it.   Treatment may occur onsite; offsite through a municipal wastewater treatment system; or by land-application of leachate to vegetation.  Since leachate would be considered to be wastewater, discharge often requires a Clean Water Act permit.

“Municipal solid waste landfill”  means a landfill — whether operated by a city, a county or a private waste management company — that receives household trash and  other commercial and industrial waste collected for disposal. MSW landfills do not dispose of hazardous waste or medical waste generated by diagnosis, treatment and  research facilities.

“Aerosolization”  involves spraying untreated landfill leachate into the air, allowing solids to resettle and  liquids to evaporate. Land-application systems direct leachate toward the ground for absorption by vegetation;  aerosolization systems direct the leachate high into the air to facilitate evaporation.   In 2016,  Republic Services (a major commercial landfill operator in the state)  made a presentation to the legislature’s Environmental Review Commission describing aerosolization and promoting the systems as a less expensive alternative to both conventional wastewater treatment and land application of leachate.

Scope of the bill. House Bill 576 requires DEQ to allow aerosolization of leachate at lined municipal solid waste landfills and allows DEQ to approve  aerosolization of leachate at unlined landfills.  The bill sets no standards for aerosolization of landfill leachate and does not expressly give either DEQ or the Environmental Management Commission authority to set standards for the practice. The bill also waives water and air quality permitting requirements for the aerosolization system if evaporation  of leachate “results in a zero-liquid discharge and is not a significant air contamination source”.

Questions:

1. Does aerosolization  of untreated landfill leachate from municipal solid waste landfills present a risk of exposure to  viruses and bacteria?    Unlike limited purpose landfills (such as those receiving only construction and demolition debris),  municipal solid waste (“MSW”) landfills receive food waste, diapers, and other personal care products that may carry viruses and bacteria. There does not seem to be readily available  information on  the potential for increased human or wildlife  exposure to viruses and bacteria as leachate becomes aerosolized and potentially wind-borne.

Without more information on the persistence of viruses and bacteria under different conditions, it is difficult to assess the risk of aerosolizing MSW leachate and develop management measures to limit the risk.  An EPA study found that viruses can survive in landfill leachate for weeks or months in moderate temperatures. A Nebraska study found that avian influenza viruses may survive in landfill leachate for up to two years.

North Carolina’s Division of Waste Management has approved four demonstration  projects for aerosolization of  landfill leachate; one involved a small-scale project at a Republic Services landfill.  The process has not been used to scale at a MSW landfill in North Carolina and  I have not found an instance of any other state permitting an evaporation system at a MSW landfill. As a result, data on the potential health risk of  aerosolizing MSW leachate either doesn’t exist or is not readily accessible.

2. Are existing  state rules sufficient to manage risk associated with aerosolization of MSW leachate?  North Carolina’s landfill rules require  a 50-foot buffer between each waste disposal area and the landfill property boundary. Rules that apply to landfills permitted before 2007 require a 50-foot buffer between waste disposal areas and a river or stream.  Landfills permitted since 2007 must maintain a  200-foot buffer between the waste disposal area and a perennial stream or wetland, although DEQ  can approve a narrower buffer (no less than 100 feet) based on local circumstances. See Session Law 2007-550.  A  500-foot buffer must be maintained between the waste disposal area and a home or water supply well.

A 2016  presentation  on leachate management by SCS Engineering noted some considerations in use of evaporation systems including:

♦ Risk of overspray and wind gusts

♦ Worker exposure to aerosolized leachate

North Carolina’s  waste management rules do not address these concerns and the potential risk to landfill workers or to people and wildlife beyond the landfill boundary.  Existing landfill buffer requirements were developed to manage the impact of buried waste and active landfill operations on waters, wetlands and adjoining property owners — not as a safety factor for aerosolization of landfill leachate and possible drift.

State  waste management rules require landfills to comply with air quality standards,  but the cross-referenced standards focus on air pollutants regulated under the Clean Air Act rather than bacteria and viruses. House Bill 576 exempts aerosolization systems from air quality permitting requirements as long as the system would not be a “significant air contamination source”. The bill does not define what would constitute a “significant” air contamination source.

The  knowledge gaps, lack of risk management guidance, and absence of standards for use of evaporation systems at municipal solid waste landfills suggests a need for  more study.

NC Senate: Proposed 2017 Budget

May 10, 2017.  Some highlights of the state budget proposed by Senate leadership as it affects environmental programs:

Money. The Senate budget continues  a nearly 10-year trend of cuts in environmental programs. An earlier post described some of the impacts of previous  budget cuts that began with the  2008 recession (including a 9% reversion of already-budgeted funds in 2009) and continued after the economy began to recover.

The Senate’s proposed budget for 2017 would reduce state appropriations to the Department of Environmental Quality (DEQ) by nearly $7 million.  That represents a 10% reduction in state appropriations and a 3% reduction in the department’s overall budget (which also includes federal grant funds and permit fees).

The reductions include:

♦ A $3.5 million discretionary cut,  which means DEQ will have to identify  reductions within the department’s operating budget.

♦  A $1 million transfer of funds  to the N.C. Department of Agriculture and Consumer Services (DACS) to challenge an EPA rule defining federal jurisdiction under the Clean Water Act. Under the McCrory administration, DEQ had joined  a number of other states in suing over the federal rule.  The Cooper administration dropped out of the litigation and the Senate provision would fund DACS  to continue the state’s participation in that litigation.

♦ The budget eliminates  56.5 positions from existing DEQ programs:

      32.5 positions in the Division of Environmental Assistance and Customer Service. Those cuts affect non-regulatory waste reduction, recycling,  water/energy efficiency and  permit assistance programs. The cuts would effectively eliminate DEQ programs that work with business/industry to voluntarily reduce waste generation which allows those businesses and industries  to reduce their regulatory burden and save money.

      14 regional office support positions. DEQ’s seven regional offices house frontline permitting and enforcement staff for multiple environmental programs. The legislature has targeted DEQ  regional offices for staff cuts in the past. This provision requires a reduction of an additional 2 positions in each  regional office. It is not clear which DEQ programs would be affected.

      5  administrative positions. The Senate bill  identifies specific jobs for elimination, including  DEQ’s Chief Deputy Secretary,  the Legislative Affairs Program Manager; a communications position; and the last two environment education positions remaining in the department.

      3 positions in the N.C. Geodetic Survey

      1 position in the Land Quality Section of the Division of Energy, Mineral and Land Resources

      1 position in the Division of Marine Fisheries

Policy provisions in the budget bill. The budget bill includes a number of changes in state law or policy related to environmental programs:

♦  Conditions on use of funds the state may receive as a result of the U.S. Environmental Protection Agency’s settlement with Volkswagen for violations of the Clean Air Act (Sec. 13.2 )  The Senate provision sets criteria for use of the funds and requires legislative approval of a DEQ plan for the funds.

♦  A provision  that allows the owners of old landfill sites to avoid environmental cleanup requirements by: 1. Accepting liability for onsite and offsite contamination; and 2. Providing financial assurance for any environmental harm.  There is an exception for property owners who did not receive compensation to accept local government waste for disposal. The provision affects a state program to assess and cleanup contamination associated with landfills and trash dumps that never met standards for solid waste landfills adopted in 1983. (iSec. 13.4).

♦  Changes to laws governing the Marine Fisheries Commission (Sec. 13.17) . The provision reduces the MFC from nine members to seven members and requires a super-majority of five  members to take any action — including adoption of rules. As with most state commissions, current law only requires a simple majority of the MFC to take most actions although a super-majority is required for adoption of fisheries management plans.

♦  A moratorium on wind energy projects (Sec. 24.2). The bill would prevent DEQ from issuing permits for new wind energy projects until December 31. 2020. During the moratorium, the bill would require a study of the impact of wind energy facilities on military operations in the state. Note; the process for approval of wind energy facilities already requires Federal Aviation Administration review and  input from military  installations.

Pigs (Again) Update

April 26, 2017. Yesterday, the Senate Agriculture, Environment and Natural Resources Committee approved a revised version of House Bill 467. The Senate changes resolve some of the questions  noted in the earlier post  about the bill’s impact on availability of punitive damages and compensation for injury other than lost property value.

The version approved by the Senate committee has a new subsection that reads:

(d) This Article does not apply to any cause of action brought against an agricultural or forestry operation for negligence, trespass, personal injury, strict liability, or other cause of action for tort liability other than nuisance, nor does this Article prohibit or limit any request for injunctive relief or punitive damages that are otherwise available.

The Senate language:

♦ Expressly allows an award of punitive damages against an agricultural or forestry operation based on existing standards in North Carolina law.

♦ Makes it clear that the bill does not limit compensation a plaintiff can receive under legal theories other than nuisance — including negligence, trespass, strict liability “or other cause of action for tort liability other than nuisance”.  In legal-speak, a  “tort” means a wrongful act injuring another person and recognized by law as the basis for a civil lawsuit. The injury may be damage to reputation or property as well as physical injury.

Under “strict liability”,  a person can be held legally responsible for harm even if there is no evidence of negligence. Historically, strict liability  has applied only to  a very narrow set of activities considered to be ultrahazardous —  the classic example has been use of explosives. Few (if any) activities associated with an agricultural or forestry operation would fall under strict liability standards.

As applied to agricultural and forestry operations,  the  most significant implications of the Senate language are:  1.  recognition of a plaintiff’s ability to  receive compensation (beyond fair market value of the property) for harm caused by negligence or trespass;  and 2. preservation of the potential for punitive damages in a particularly egregious nuisance case.

One reference in the new Senate language is not like the others — unlike  nuisance, negligence, or trespass, “personal injury” in itself is not a cause of action.  Instead, “personal injury” describes a type of harm the plaintiff may have suffered as a result of negligence, nuisance, trespass or some other tort.

The House version of H 467 limited damages for nuisance to fair market value or fair rental value of the property affected — apparently excluding compensation for health effects caused by the nuisance condition. Given the context, It isn’t clear  whether the Senate language  intends to allow compensation for  health effects in a nuisance action against an agricultural/forestry operation — or simply acknowledges the possibility of compensation for personal injury under another legal theory such as negligence.

The bill has now been referred to a Senate Judiciary Committee for review before going to the Senate floor.

Pigs (Again)

April 25, 2017. Two weeks ago, the  N.C. House quickly approved a bill limiting the money damages available to a plaintiff who wins a nuisance lawsuit against an agricultural or forestry operation. According to the bill title,  House Bill 467    “clarifies” the compensation available to a person whose property use has been negatively affected by agricultural or forestry activities.

The backstory.  In  2014, multiple nuisance lawsuits representing hundreds of North Carolina plaintiffs  were filed against Murphy Brown LLC (the grower subsidiary of Smithfield Foods)  in federal court. The plaintiffs  allege that odors, ammonia emissions, pests and other conditions associated with nearby swine farms negatively affect the use of their property.  A 2015 Charlotte Observer story provides a good overview of the claims.  The nuisance cases allege  many of the same problems described in a separate civil rights complaint concerning N.C. swine farms  filed in 2014. (That complaint remains under investigation by the U.S.  Environmental Protection Agency; see a previous post for more on the environmental justice complaint and EPA’s preliminary response.)

H 467 limits compensation available to a person who successfully proves an agricultural or forestry operation has created noxious conditions that interfere with use of their property. As originally introduced, the bill limited compensation available in both  pending and future lawsuits.  In a letter to the News and Observer, Rep. Jimmy Dixon described the bill as a necessary response to greedy lawyers who “want to sue farmers for outrageous sums without having to prove real damages”.   Although more broadly worded, H 467  clearly responded to the pending nuisance lawsuits against swine operations.

The General Assembly has acted to protect agricultural operations from nuisance lawsuits before. North Carolina has had a “right to farm” law since 1979.  Under G.S.  106-701, an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around it.    “Right to farm” laws (adopted in nearly every state) attempt to protect  farms  from nuisance claims by people who later buy property near the farm  — presumably with knowledge of the existing agricultural activity.  In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

How H 467 Would Affect Compensation for Nuisance.  “Nuisance” means interference with the use and enjoyment of another person’s property.  For example, plaintiffs in the pending swine farm nuisance cases allege conditions created by farm operations (including odor, pests, and exposure to ammonia emissions)  have caused health problems and restrict outdoor activities.  H 467  limits the money damages that a plaintiff who successfully proves a case of nuisance can recover as compensation. Under the bill, compensation for a nuisance condition caused by an agricultural/forestry operation would be limited to either the fair market value of the property affected (for a permanent nuisance) or the fair rental value (for a temporary nuisance).

Historically, North Carolina case law has recognized other types of nuisance damages such as injury to a business.  One case allowed compensation for water pollution that damaged a downstream fishing/ fish processing operation.  Nuisance cases have also sometimes alleged health problems caused by the nuisance condition. H 467 does not allow a plaintiff to recover damages for a business loss  or compensation for negative health effects. The only compensation for an agricultural/forestry nuisance allowed under the bill would be the fair market value or fair rental value of the plaintiff’s property.  (I do not know whether compensation for health effects could be available under a legal theory other than nuisance.)

The bill may also bar award of punitive damages, which a court can award to punish and deter bad actors.    In  North Carolina, G.S. 1D-15 allows the court to award punitive damages  if the defendant has been found liable for compensatory damages (such as lost property value due to nuisance conditions) and the plaintiff proves one of three aggravating factors: 1. fraud 2. malice or 3. willful or wanton conduct.  Willful or wanton conduct means “the conscious and intentional disregard of and indifference to the rights and safety or others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”  See G.S. 1D-5 (7).   Without further clarification,  H 467 may be interpreted to prevent an award of punitive damages even if the defendant willfully ignored the likelihood of harm to nearby property or acted in violation of state law.

The Scope of H 467. The bill, as first introduced, would have applied to both pending nuisance lawsuits and future lawsuits. Two prominent Republican lawyers, former N.C. Supreme Court Justice Robert Orr and former Representative Paul Stam, raised questions about the constitutionality of limiting compensation available under pending lawsuits.  In response to those concerns, the bill was amended to apply only to future nuisance lawsuits;  the House then adopted the bill as amended.

H 467 also contains a provision that extends the limitation on nuisance damages to “any private nuisance claim brought against any party based on that party’s contractual or business relationship with an agricultural or forestry operation”.  The language most likely  intends to protect parent corporations sued as a result of nuisance conditions created by a subsidiary or contractual supplier. For example, the limit on damages would apply to Smithfield Foods as the parent company of Murphy Brown LLC even though Smithfield Foods itself would not be considered an “agricultural operation”.

Status of the bill. Having passed the House, H 467 still needs Senate approval. The bill has been scheduled for discussion in the Senate Agriculture, Environment and Natural Resources Committee today. If the bill receives the committee’s endorsement, it would go back through the Senate Rules Committee before reaching the Senate floor. (Note: Bills often pop out of the Rules Committee without warning.)

Bonus literary tip — A  favorite children’s picture book by David McPhail describes a different kind of piggy  nuisance.