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Mountaire, residents battle over plant improvements, liability

June 21, 2019

State officials have received a 30-day window to continue negotiations to resolve a complicated legal case involving Mountaire Farms of Delaware, Delaware Department of Natural Resources and Environmental Control and nearly 700 Millsboro residents.

Players in a case filed in both state and federal courts are trying to reach a resolution over a consent decree that would bring major upgrades to Mountaire’s wastewater treatment plant. The key sticking point in negotiations is Mountaire’s liability for prior and future claims.

Still, Mountaire is fighting in court to prevent the citizens from intervening in a case brought by DNREC against Mountaire over 2017 environmental violations. Mountaire has appealed a March U.S. District Court ruling allowing nearly 700 members of a class-action lawsuit to intervene in DNREC’s suit against Mountaire.

In September 2017, Mountaire reported a failure of its wastewater treatment plant due to a build-up of solids throughout the plant and a depletion of oxygen in the plant’s aerobic operations, causing Mountaire’s wastewater to exceed the effluent limits of their spray permit. DNREC issued a notice of violation in November 2017 on 17 environmental infractions. In June 2018, DNREC filed suit against Mountaire to get judicial approval of a consent decree that called for Mountaire to make short-and-long term improvements to the plant and to offer an alternative water supply to nearby residents, either through new wells or through a central water supply company.

About the time the consent decree was announced, attorneys for Gary and Anne-Marie Cuppels announced they had filed a class-action lawsuit in Delaware Superior Court against Mountaire for health problems brought on by drinking water they say was contaminated by Mountaire. That lawsuit is ongoing. A similar lawsuit was also filed by Joseph and Joan Balback and 45 class members in the federal court.

In November, Mountaire and DNREC went before Delaware Superior Court Judge Richard F. Stokes to ratify the consent decree. The Cuppels and their attorney, Chase Brockstedt, filed a motion to intervene, saying the consent decree prevents legal action against Mountaire for claims prior to when the decree goes into effect. Mountaire and DNREC opposed the motion, saying intervention would delay needed environmental improvements to the plant.

Stokes deferred to the federal court for a ruling on intervention, staying the state case until federal claims were resolved. DNREC appealed Stokes’ stay to Delaware Supreme Court, but on May 31, a three-justice panel denied DNREC’s appeal, leaving the stay in place.

In her ruling on the residents’ intervention, District Court Judge Maryellen Noreika noted the case is in its early stages and the Cuppels’ participation would not slow progress in the litigation.

In May, Noreika asked the parties for an update, and granted DNREC 30 days to come up with a path forward that would keep the remedies called for in the consent decree but also satisfy the Cuppels. According to court documents, all three parties met June 6 and are scheduled to meet again Thursday, June 27.

Writing to Noreika,  Deputy Attorney General Devera Scott said if the parties are able to resolve that issue, DNREC seeks to finalize the consent decree for Noreika’s signature. Scott asked for another 30-day window to continue discussions.

Meanwhile, Mountaire has continued its appeal to the Third Circuit court over Noreika’s ruling allowing the Cuppels’ to have unlimited intervention. According to court documents filed by Mountaire’s attorney, Michael Arrington, Mountaire is no longer contesting the Cuppels ability to participate in the litigation, but is objecting to their unlimited intervention. Arrington said that without some conditions on their intervention, the consent decree could be delayed for years as litigation plays out.

In his response, Brockstedt asked the circuit court to dismiss Mountaire’s appeal because Noreika’s order is not appealable and can be reviewed only following a final judgement. In court documents, Brockstedt said Mountaire is trying to turn Noreika’s order into something it is not, arguing that Norekia’s ruling was not a final order on the case and the suit between Mountaire and DNREC is still ongoing.