Declares consent decree 'wholly inadequate'

Law firm Baird Mandalas Brockstedt has filed a class action lawsuit against Mountaire Farms of Millsboro.

The announcement at a press conference at Millsboro Town Hall and Civic Center June 13 comes about a week after BMB filed a motion to intervene in a consent decree between Mountaire and the Delaware Department of Natural Resources and Environmental Control, and a day after Mountaire asked the Supreme Court to strike that motion.

The consent decree addresses a period during summer 2017 in which the company daily violated its DNREC-issued spray irrigation and agricultural utilization permits in multiple ways. Those violations included spraying inadequately treated wastewater sludge onto fields surrounding the Millsboro Mountaire campus, which leached into the groundwater and contaminated drinking water wells.

The state agreement requires Mountaire to pay $600,000 in penalties and make substantial wastewater treatment upgrades, but the BMB legal team found it “wholly inadequate” and filed a motion to intervene.

Around six months ago, BMB hired a dozen independent experts to investigate Mountaire’s environmental practices. Their findings led to the class action suit, which seeks to force Mountaire to stop discharging insufficiently treated wastewater, overhaul and update their wastewater treatment plant, establish a clean drinking water source for residents, remediate the soil and compensate their clients for ill effects and property value diminishment. The experts joined Brockstedt at the press conference.

Roger Truitt is an environmental engineer, a lawyer, a Sussex County native and one of BMB’s experts.

“I think they want us to believe this was just a temporary thing caused by some bad employees who they’ve now fired … and now everything is fine. However, [our experts] found this gross failure that occurred … was completely predictable and inevitable,” he said.

Mountaire has also pointed to the historically polluted groundwater to blame for the nitrate levels, but Truitt said the problem has gotten worse since Mountaire arrived in 2000. According to him, nitrate levels measured at wells in the area of the spray irrigation have steadily gone up since 2005, while levels outside of Mountaire’s reach, but still within the historically polluted area, have gone down.

Truitt was joined by Dane Bauer, retired from the Maryland Environmental Service. His job whose was for years to regulate wastewater treatment, including at similar companies, such as Tyson and Perdue.

Bauer said Mountaire was bound to fail from the beginning. The spray irrigation permit DNREC agreed to allowed far too high a nitrate concentration and, due to the use of inadequate supporting data, mismanagement and antiquated equipment, wasn’t a number Mountaire was likely to ever achieve, anyway.

The EPA drinking water standard for nitrates is 10 milligrams per liter. The state permit specified the maximum amount of treated wastewater to be discharged monthly and its total nitrogen concentration – 15.6 milligrams per liter.

The premise of spray irrigation is that crops will take up the nitrogen, preventing it from leaching into the groundwater. The problem, according to Bauer, is that Mounatire’s ability to spray-irrigate each day depends on the weather, and they only have six days’ worth of wastewater storage.

“You don’t spray-irrigate when it’s raining, when it’s freezing, when the crop doesn’t need it. Six days of storage does nothing. Absolutely nothing,” he said. “In 2018 they’d have been hard-pressed to manage … if they had 120 days of storage, much less six. They had no chance of being able to meet the effluent limits.”

Bauer’s solution to the problem is upgrading the wastewater treatment facility to state-of-the-art levels in order to reach a nitrate output of 3 milligrams per liter, as opposed to the far higher nitrate levels in the water the company has been spraying.

“Then they wouldn’t have to rely on the crop uptake anymore. You would be happy to see it go into the groundwater because it would be well below the drinking standard,” he said.

In the meantime, Bauer believes storage space is extremely important.

“At least 90 or 120 days [worth], because there’s at least that many days a year when … you cannot irrigate,” he said.

Another issue brought up by a BMB expert was air quality. John Purdum has been performing air quality analyses for over 30 years, and according to him, the potent odor the factory produces is releasing hydrogen sulfide and ammonia into the air at levels that exceed Delaware standards. Exposure to these chemicals can cause respiratory and neurological effects.

According to BMB, the blame for the odor falls, in part, on both the spray irrigation and uncovered wastewater treatment lagoons.

Brockstedt said that his firm is representing over 700 clients in the suit and he expects that number to increase. His next step is to move for the court to approve class certification.