STATE OF DELAWARE DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Plaintiff,
MOUNTAIRE FARMS OF DELAWARE, INC., Defendant.
SUBMITTED: December 7, 2019
B. Scott, Esquire and William J. Kassab, Esquire, Department
of Justice, attorneys for Plaintiff
Michael Parkowski, Esquire, Michael W. Arrington, Esquire,
Michael W. Teichman, Esquire, and Elio Battista, Jr.,
Esquire, Parkowski, Guerke & Swayze, P. A., attorneys for
T. Brockstedt, Esquire, Baird Mandalas Brockstedt, LLC,
attorneys for the Cuppels Intervenors
C. Crumplar, Esquire, and Raeann Warner, Esquire, Jacobs
& Crumplar, P.A., attorneys for the Balback Intervenors
ORDER STAYING ACTION
State of Delaware Department of Natural Resources and
Environmental Control ("DNREC") has filed this
action against Mountaire Farms of Delaware, Inc.
("Mountaire") in connection with the poultry plant
Mountaire operates in Millsboro, Delaware. DNREC also
submitted for the Court's approval a Consent Decree it
entered into with Mountaire which resolves various issues the
complaint raises. This is my decision staying this action
pending the outcome of a related lawsuit filed in the United
States District Court in and for the District of Delaware
separate groups have sought to intervene in this matter. The
first group consists of Gary Cuppels, Anna-Marie Cuppels and
other unnamed property owners ("the Cuppels"). The
other group is made up of Joseph Balback, Joan Balback, a
non-profit and other community members and property owners in
the vicinity of the poultry plant at issue ("the
Balbacks"). Collectively, these two groups are
referenced as "the potential intervenors."
March 27, 2018, the Balbacks filed a federal notice of intent
to sue Mountaire for alleged ongoing violations of the
Resource Conservation and Recovery Act ("RCRA"),
maintaining that Mountaire's violations have caused
long-standing and widespread groundwater contamination that
creates an imminent and substantial endangerment to public
health and the environment.
2, 2018, the Cuppels also filed a federal notice of intent to
sue for RCRA violations.
4, 2018, DNREC filed an enforcement action against Mountaire
in District Court. This action alleged violations of RCRA and
the Clean Water Act ("CWA"). The Cuppels have been
allowed to intervene in the District Court
case. The Court is unaware of whether the
Balbacks have filed to intervene in that action.
June 4, 2018, DNREC filed the current action in Superior
Court. The basic allegations in the complaint are as follows.
order to dispose of its waste from the manufacturing process,
Mountaire sprays the effluent on certain lands and applies
sludge to other areas. The disposal is governed by
Delaware's Environmental Control Act as found in 7 Del.
C, ch. 60; wastewater regulations;and two permits, a spray
permit and a land application permit. Mountaire's
wastewater treatment facility failed in August, 2017.
Mountaire thereafter illegally disposed of the effluents from
its manufacturing process. In September, 2017, DNREC learned
of the failure of the wastewater treatment facility. DNREC
began to investigate the failure and developed a corrective
action plan. DNREC enforced the applicable laws through a
Notice of Violation and monitored Mountaire's compliance
with the requirements of the Notice of Violation.
complaint alleges more specifically as follows.
Mountaire's actions resulted in violations of the spray
permit effluent limitations for total nitrogen; the spray
permit effluent limitations for five-day biochemical oxygen
demand; the spray permit effluent limitations for total
suspended solids; the spray permit effluent limitations for
fecal coliform; and the spray permit effluent requirements
for residual chlorine. Furthermore, the operation of the
wastewater treatment facility and application of effluent
onto the spray fields has caused groundwater to exceed
drinking water standards in violation of the spray permit. In
this count of the complaint, DNREC alleges the permit
prohibits Mountaire's operation of the wastewater
treatment plant and spray irrigation system "from
causing the quality of Delaware's groundwater resources
to be in violation of applicable Federal and State drinking
water standards." DNREC further alleges Mountaire failed
to submit a timely plan of corrective action; it failed to
maintain and operate all structures, pipelines, systems and
equipment in order to comply with the spray permit; it did
not timely notify DNREC of its non-compliance or of a system
bypass; it failed to report complete and accurate information
as required by the spray permit; it illegally applied sludge
to the land; it failed to plant an appropriate crop or ground
cover after applying sludge; it applied sludge without first
marking buffer zones; and it failed to notify DNREC before
commencing the sludge application.
asserts it is legislatively authorized to exercise police
power to protect the health, safety and welfare of the
citizens of Delaware. DNREC maintains that pursuant to its
authority, DNREC enforces numerous environmental statutes and
regulations, including the federal delegation of
administration of RCRA and the CWA. DNREC seeks the
imposition of appropriate civil penalties as well as an order
directing and authorizing enforcement pursuant to 7 Del.
C. § 6005 for the violations identified in the
complaint and any future violations, and any other relief the
Court may deem just and proper.
I conclude that this complaint invokes RCRA and CWA issues.
noted above, DNREC and Mountaire entered into a Consent
Decree in connection with the filing of the complaint in this
action. The key ...