Lawyers for some Millsboro residents planning to sue Mountaire Farms are moving to intervene in a settlement between Delaware and the poultry producer addressing wastewater violations.
The Lewes law firm Baird Mandalas Brockstedt LLC calls a consent decree submitted in state Superior Court this week to resolve violations at Mountaire’s Millsboro plant “wholly inadequate.” They represent almost 700 Millsboro residents affected by Mountaire's wastewater.
Baird Mandalas Brockstedt on Wednesday announced they filed a motion to intervene in Delaware Superior Court, saying the agreement does not properly address the problems that led to contamination in neighbors’ drinking water, said Chase Brockstedt, a partner with the firm.
"What they are proposing is a Band-Aid," Brockstedt said. "And what we’re saying is that there needs to be a complete overhaul and a new system employed. Not only to make sure that in the future they don’t continue to contaminate the soil with nitrates and other contaminants, but there’s steps that need to be taken in terms of remediating the soil in the area..."
In a June 6 statement, Mountaire's Executive Vice President of Processing Operations Mike Tirrell said the company "will vigorously oppose this motion, which is filled with baseless allegations."
Under the consent decree which needs a judge's signature, Mountaire Farms will pay a $600,000 penalty to the state, or $420,000 if it performs a project that benefits the environment. The decree also requires Mountaire to apply for a construction permit to upgrade its wastewater facility within 10 days since it was filed in Delaware Superior Court on June 4.
Tirrell said the consent decree is "carefully negotiated" and represents DNREC's "thoughtful and considered judgement."
"This motion to intervene is nothing more than an attempt to corrupt the regulatory process in order to further the plaintiff’s lawyers’ separate agenda, and will serve only to slow the process of upgrading and improving our wastewater treatment facility," Tirrell said.
In a June 4 statement, Mountaire said it maintains that high nitrate levels have been in Millsboro-area groundwater and has been caused by other factors, since before it moved there in 2000; but the company says it has committed to giving nearby neighbors an alternative water supply. Mountaire experienced a "wastewater system upset" over the summer that they say "caused [them] to exceed [their] permit limits."
"Even though we know that the system upset could not have had an impact on local drinking water wells, we chose to offer this step to ease concerns of the Millsboro community that is so important to us," Mountaire said.
In March, legal advocacy nonprofit Public Justice, Food & Water Watch, local law firms and dozens of Millsboro residents filed a notice of intent to sue Mountaire under the Resource Conservation and Recovery Act. This law addresses proper management of solid waste.
However, since DNREC also filed a complaint in the U.S. District Court for the District of Delaware on Monday claiming Mountaire violated RCRA, this preempts the group's lawsuit from moving forward, Jessica Culpepper, a food project attorney for Public Justice said.
"The law itself says citizens can only bring in action if the state and federal government is not bringing the same action," she said. "By filing that in court, they have effectively stopped any citizen suit from moving forward."
Culpepper said the consent decree between DNREC and Mountaire “appears to be progress,” but issues at the plant and in the groundwater have gone on for decades.
“Immense damage has been done and Mountaire must make things right with its neighbors,” Culpepper said.
Updated at 9 a.m. Thursday, June 7 to include a statement from Mountaire on the Motion to Intervene.
Motion to Intervene in Mountaire/DNREC Consent Decree by Delaware Public Media on Scribd
