Citizens allowed to intervene in DNREC-Mountaire suit

State judge stays proceedings
April 10, 2019

A federal judge has allowed two groups of class-action litigants to intervene in a lawsuit contesting a consent decree negotiated by Delaware Department of Natural Resources and Environmental Control, and poultry producer Mountaire.

In a March 25 ruling, U.S. District Court Judge Maryellen Noreika granted the motion brought by attorneys for two Sussex County couples to intervene in a two-pronged case.

Meanwhile, a Delaware judge has stayed a state case brought by DNREC against Mountaire until the federal lawsuit is concluded.

In a suit filed by Gary and Anne-Marie Cuppels in Delaware Superior Court, the couple alleges they had to be hospitalized because they drank water contaminated by Mountaire’s spray irrigation practices. The Cuppels suit has come to include over 700 class members. A second suit, filed in U.S. District Court in Wilmington by Joseph and Joal Balback, makes similar allegations and involves 45 other class members.

In June 2018, DNREC filed suits in federal and state court against Mountaire related to groundwater contamination. The DNREC cases go back to September 2017, when DNREC learned Mountaire’s wastewater treatment facility had failed the prior month. A DNREC investigation showed effluent sprayed by Mountaire exceeded drinking water standards, in violation of the company’s spray permit.

In its lawsuit, DNREC also alleges that Mountaire did not notify DNREC in a timely fashion about the system’s failure and did not submit a timely plan of corrective action, among other environmental violations.

Mountaire and DNREC then negotiated a consent decree concurrent with DNREC’s legal filings which would force Mountaire to make short and long-term improvements to the company’s wastewater treatment system. However, court documents show Mountaire would not admit liability for elevated nitrate levels in wells around the company’s Millsboro plant, but Mountaire would provide a central water supply system or deep water supply wells to residents in the area. The consent decree must be signed off on by a judge.

In November, DNREC and Mountaire looked for just that from Superior Court Judge Richard Stokes. But Cuppels and Balback attorneys Chase Brockstedt and Chris Nidel filed motions to intervene; DNREC and Mountaire opposed their intervention, saying it would delay improvements to Mountaire’s treatment facilities. Attorneys for DNREC and Mountaire argued at the November hearing that there would be opportunities for potential intervenors to have their say when Mountaire seeks a permit for a new water supply.

But Brockstedt and Nidel have argued that Mountaire’s operations have been polluting their clients’ water supply for years. They argue that the consent decree prevents legal action against Mountaire for claims prior to the decree going into effect. According to Noreika’s decision, citizens are prohibited from filing suits in instances where the state has already taken action against an alleged violator, leaving the federal court as the only option the intervenors would have to question the consent decree.

“This case is at its earliest stages,” Noreika wrote. “So far, DNREC filed its complaint and intervenors moved to intervene. Intervenors’ full participation would not undo significant work in this litigation or upend a schedule already in place.”

In response to Noreika’s decision, Stokes issued a decision March 29 staying the proceedings in Delaware Superior Court. He said while the stay would delay needed improvements to Mountaire’s treatment facility, the resolution of the federal case will allow for all issues to be addressed and resolved.

“The court is unwilling under the facts of this case to rubber stamp the consent decree,” Stokes wrote. “In the situation at hand, a refusal to enter a stay would increase the amount of litigation in these cases and would complicate proceedings.”

Representatives from DNREC did not comment on the decision. In the class-action cases, a gag order has been imposed to prevent the parties from making comments to the media. Brockstedt said that, while there is not a gag order in the DNREC case, he did not wish to comment on the decisions.

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