Mountaire to appeal intervention to U.S. Appeals Court

Mountaire Farms of Delaware intends to appeal a U.S. District Court judge’s ruling that would allow a Millsboro couple to intervene in a civil suit over pollution from Mountaire’s processing plant.

Mountaire is appealing an order from Judge Maryellen Noreika to the U.S. Court of Appeals for the Third Circuit. Noreika had ruled in March that Gary and Anne-Marie Cuppels and fellow members of their class-action lawsuit against Mountaire could intervene in a separate action Delaware Department of Natural Resources and Environmental Control has brought against the chicken firm.

Mountaire is asking for Noreika’s ruling to be amended or supplemented to put limitations on the Cuppels and fellow members of their class-action suit, which has grown to include nearly 750 people.

The action stems from a DNREC enforcement action from July 2017 in response to a failure of Mountaire’s wastewater treatment plant in Millsboro. DNREC sued Mountaire in order to get judicial approval of a consent decree that calls for major upgrades at Mountaire’s wastewater treatment facility and the implementation of new public water supplies for homes near Mountaire’s plant. Action on the consent decree has been stayed by Delaware Superior Court Judge Richard Stokes until the federal court proceedings are resolved.

Mountaire and DNREC say the motion to intervene will slow down implementation of improvements to the plant. In an April 12 court filing, Mountaire said it will begin the improvements despite not knowing how the legal process will play out. In its motion to modify Noreika’s order, Mountaire argues that if the intervenors have problems or questions with the consent decree, those questions should be resolved by DNREC, not the courts. DNREC agreed with Mountaire’s request, saying in court filings that the agency should retain its authority to regulate Mountaire.

The Cuppels’ attorney, Chase Brockstedt, asked for Mountaire’s motion to be denied, saying it was attempting to prevent his clients from having a role in the litigation. He said the consent decree releases Mountaire from liability for past and future violations and the proposed new water supply does not serve a large enough area.

Separately, the Cuppels filed suit against Mountaire for contamination of their water after they were hospitalized with intestinal problems.  A second suit, filed in U.S. District Court in Wilmington by Joseph and Joan Balback, makes similar allegations and involves 45 other class members.

In November, DNREC and Mountaire sought Stokes’ signature on the consent decree. But attorneys for the Cuppels and the Balbacks filed a motion to intervene, saying the consent decree prevents legal action against Mountaire for claims before the decree went into effect.

Noreika agreed with them, stating 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.