Agreement has yet to affect state's lawsuit

One of southern Delaware’s largest employers has agreed to pay more than half a million dollars in fines and penalties for breaking environmental laws at downstate chicken plants near Millsboro and Selbyville.

Mountaire Farms operates poultry plants along the Eastern Shore and elsewhere in the U.S. that slaughter, process and package chickens and meat for market.

Problems came to light in 2017, when the state Department of Natural Resources and Environmental Control cited Mountaire for violating state-issued waste treatment and disposal permits on farm fields surrounding its plant on Del. 24 near Millsboro.

The agreements announced Dec. 16 would resolve those violation claims, and other “unauthorized discharges of pollutants” from the plant and one in Selbyville. It would address the high ammonia levels found in monitoring wells near temporary sludge storage along the nearby Swan Creek.

“There are some other outstanding violations that were kind of getting lost in us focusing on the 2017 incident,” DNREC Secretary Shawn Garvin said. “This provided us an ability to put together an agreement on how those issues will be resolved.”

In a consent decree, DNREC proposed up to $600,000 in penalties for problems at the Millsboro plant and up to $230,000 for the other outstanding violations.

The company could offset up to $295,000 of the $830,000 in proposed penalties by undertaking a wetlands project on or near Indian River and supplying some Millsboro-area residents with clean drinking water by providing a filter, public water connection or digging deeper wells, state officials said. That could bring their total penalty to $535,000.

Mountaire will repay $25,000 spent investigating dozens of waste-related violations.

“This will bring closure on all outstanding issues and it’s time the permitting process moves forward,” Mountaire officials said in a prepared statement. “We have been completely transparent with DNREC every step of the way, and our team has worked hard to make improvements at our existing plants while getting ready for construction of a new, state-of-the-art wastewater system in Millsboro to begin.”

History of the claims

The state said the agreements resolve its federal lawsuit against Mountaire, which began with a notice of violation in fall 2017.

Around that time the chicken plant’s neighbors noticed strange-colored muck shooting from the end of irrigation rigs that roll across farm fields bordering their homes. The company holds a state permit to apply treated wastewater to crops there.

Regulators soon learned that, in addition to failing to report information to the state, Mountaire’s wastewater treatment plant had experienced an “upset”– a failure – and untreated waste had been rerouted and improperly spread across hundreds of acres.

That included high levels of fecal bacteria and nutrients, already plaguing nearby waterways and underground aquifers used for drinking water.

The violation notice led to lawsuits, the first filed by the state to resolve the issues. Then came two private lawsuits, one a class-action, that called those plans “woefully inadequate.” Challenges to the 2018 consent agreement stalled work to address problems, including upgrades like a new wastewater treatment plant estimated to cost more than $30 million.

DNREC said the agreement announced Monday updates that consent order, with additional requirements and options.

The new agreement has yet to be accepted into DNREC’s federal suit. It is described in court records as a settlement between DNREC and Mountaire on claims the chicken company violated federal environmental laws.

“In and of itself it does not address that and make it go away,” Garvin said when asked if the agreement resolves DNREC’s federal case against the company. He said a public hearing on the new consent decree will be held, but has not yet been scheduled.

At least one group of Millsboro-area residents accusing a Sussex County chicken plant of contaminating their drinking water has agreed to settle. In November a settlement was reached between Mountaire Farms and about 100 residents represented by Wilmington-based firm Jacobs & Crumplar.

Meanwhile, the attorneys in the remaining active case against Mountaire appear unhappy with the updated consent order announced Monday, court documents show.

“We do not believe it resolves any of the issues pending in federal or state court nor does it resolve any of the environmental issues caused by Mountaire’s practices,” attorney Chase Brockstedt said Dec. 17, after he first read the press release on the agreement. “We believe that issuing this press release is a violation of the gag order in state court. We are not going to issue a press release and instead we intend to take this issue up with the court.”

DNREC said residents still involved in litigation against the company will have a chance to comment on or oppose the order during the public comment period.

Residents involved in the pending class-action lawsuit, represented by Brockstedt’s firm, were allowed to intervene on the first consent order between DNREC and Mountaire, described in court filings as “woefully inadequate.”

In their update to the court Dec. 16, Brockstedt’s clients say DNREC “secretly negotiate[d] the amended consent decree with Mountaire behind closed doors, totally excluding” them from the process despite a court order allowing them to be involved.

When asked if Mountaire was currently meeting its pollutant discharge limits, Garvin said he had not “gotten an update” and until the new treatment plant is operating, it was understood the plant would be “in and around their limits.” DNREC officials said they would share data Dec. 17.