Agreement has yet to be accepted into the federal lawsuit brought by DNREC against Mountaire.
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 two of its downstate chicken plants.
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, including the offending plants near Millsboro and Selbyville.
Problems at those two facilities came to light as early as 2017, when the state Department of Natural Resources and Environmental Control cited Mountaire for violating its state-issued permits for waste treatment and disposal on farm fields surrounding its plant near Millsboro.
The agreements announced Monday would resolve those violation claims, as well as other "unauthorized discharges of pollutants" from the plant on Del. 24 and in Selbyville. It would also address the high ammonia levels found in monitoring wells near a temporary sludge storage site 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."
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 cost to $535,000.
Mountaire will also repay the Delaware Department of Natural Resources and Environmental Control for the $25,000 spent on 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.”
The new agreement has yet to be accepted into the federal lawsuit brought by DNREC against Mountaire. It is described in court records as a settlement between DNREC and Mountaire on claims that 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.
Meanwhile, the attorneys in the remaining active court case against Mountaire are seemingly 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 Tuesday morning, after he first read DNREC's 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."
A settlement has been reached in the second of the private lawsuits filed against Mountaire since 2017.
That case included many of the residents living closest to the plant, including those along Herbert Lane bordering the plant's farm fields where it sprays treated wastewater. Residents had initially threatened to file a citizen lawsuit through those federal laws on the grounds that state and federal officials had failed to enforce environmental rules.
DNREC argues to the court in an update report that 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, which lawyers previously said in court filings was "woefully inadequate."
In their update to the court on 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 that they be involved.
When asked if Mountaire was currently meeting its permit limits, Garvin said he had not "gotten an update" and that until the new treatment plant was online, it was understood the plant would be "in and around their limits." DNREC officials said they would share that data on Tuesday.
A brief history of the claims
DNREC said the recently reached agreements "executed" on Friday resolve the state's case against Mountaire, which began with a notice of violation in fall 2017.
That was around the time the chicken plant's neighbors noticed a strange-colored muck shooting from the end of irrigation rigs that roll across farm fields bordering their homes, where the company holds a state permit to apply treated wastewater to farm crops.
Regulators soon learned that, in addition to failing to report required information to the state, Mountaire's wastewater treatment plant had experienced an "upset"– a failure – and waste had been rerouted and improperly spread across hundreds of acres of farmland.
That waste included high levels of fecal bacteria and nutrients, a pollutant already plaguing nearby waterways and underground aquifers that people use for drinking water.
The violation notice led to lawsuits, the first filed by the state with a plan to resolve the issues. Then came two private lawsuits, one a class-action, that called those plans "woefully inadequate."
Challenges to the state and company's original agreement stalled plans to address issues at the site, including upgrades like a new wastewater treatment plant estimated to cost more than $30 million.
The agreement announced on Monday "updates" that consent order, with some additional requirements and options.