Injunction sought in class-action Mountaire case

Members of a class-action lawsuit against Mountaire Farms say they have been left out of negotiations over a new consent decree between Mountaire Farms and DNREC. They are now seeking a preliminary injunction against the poultry processor to stop the company from spraying wastewater near its Millsboro plant.

The motion, filed May 4 by attorney Chase Brockstedt in U.S. District Court of Delaware, also includes opposition to the Delaware Department of Natural Resources and Environmental Control’s request to stay legal proceedings.

The complicated case revolves around a September 2017 failure of Mountaire’s wastewater spray-irrigation system. DNREC took Mountaire to court in order to facilitate judicial approval of a consent order that would have led to improvements to Mountaire’s wastewater treatment system. At the same time, Gary and Anna-Marie Cuppels, a Millsboro couple, filed a class-action lawsuit in June 2018 against Mountaire claiming the company contaminated their drinking water, leading to health problems. The class has since expanded to include more than 800 members. 

Brockstedt, representing the Cuppels and the class, sought and won the right to intervene in the DNREC-Mountaire case, stating that the consent decree Mountaire and DNREC agreed on did not adequately address the problem and left no legal recourse for citizens affected by Mountaire’s wastewater disposal. 

As the case has worked its way through the U.S. District Court, Mountaire, DNREC and the Cuppels class entered mediation to find a solution. As this was happening, DNREC and Mountaire announced a new consent decree in December 2019 and requested approval from the court. Brockstedt claimed in legal filings that his clients were not invited to participate in drafting the consent decree. 

Brockstedt filed objections to the consent decree in January, and the sides were ordered by Judge Maryellen Noreika to sit and resolve objections to the decree. But according to Brockstedt, his clients have still not been allowed to participate in consent decree discussions.

“The intervenors have still not been invited to participate in the negotiations or drafting of this agreement, nor have they been provided a copy of the draft,” Brockstedt said in court filings. “Even so, it is the intervenors understanding that the amended consent decree agreement between DNREC and Mountaire will do nothing to stop Mountaire’s ongoing, continuous and gross permit violations and groundwater contamination, nor provide safe drinking water to the vast majority of intervenors.”

On April 30, DNREC filed a motion to stay the litigation, citing an impasse with the Cuppels’ class in resolving their objections. DNREC asked for a new deadline of May 29 to consider amendments to the consent decree. DNREC attorneys Devera Scott and William Kassab say in court documents that the department’s request is also due to the COVID-19 pandemic and the subsequent state of emergency declared by Gov. John Carney.

Scott and Kassab argue the proceedings should be stayed because so much of the state’s resources and personnel are being diverted to fight the virus, the case should be put off for 30 days. Their court filings say Mountaire does not oppose the motion.

On May 4, Brockstedt filed a motion opposing the stay. 

“At this point, a further stay ordering DNREC to include the intervenors in negotiating the amended consent decree is intolerable because of the ongoing health and environmental impacts continuing to be caused by Mountiare’s conduct,” Brockstedt wrote.

The case is under a gag order preventing the sides from commenting on the case through the media, but court documents are publicly available.