State of Delaware Department of Natural Resources and Environmental Control v. Mountaire Farms of Delaware, Inc.

Filing 149

MEMORANDUM OPINION. Signed by Judge Jennifer L. Hall on 4/12/2021. (ceg)

Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 1 of 4 PageID #: 5411

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STATE OF DELAWARE
DEPARTMENT OF NATURAL
RESOURCES &
ENVIRONMENTAL CONTROL,
Plaintiff,
and
GARY and ANNA-MARIE CUPPELS,
Plaintiffs-Intervenors,
v.
MOUNTAIRE FARMS OF
DELAWARE, INC.,
Defendant.

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C.A. No. 18-838-JLH

MEMORANDUM OPINION

Devera Breeding Scott, William Joseph Kassab, DELAWARE DEPARTMENT OF JUSTICE, Attorneys
for Plaintiff.
Chase Traver Brockstedt, Stephen A. Spence, BAIRD MANDALAS BROCKSTEDT LLC, Lewes,
Delaware; Philip C. Federico, Brent Ceryes, SCHOCHOR, FEDERICO AND STATON, P.A., Baltimore,
Maryland, Attorneys for Plaintiffs-Intervenors.
F. Michael Parkowski, Michael W. Teichman, Elio Battista, PARKOWSKI, GUERKE & SWAYZE,
P.A., Wilmington, Delaware; Timothy K. Webster, SIDLEY AUSTIN LLP, Washington, District of
Columbia.

April 12, 2021

Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 2 of 4 PageID #: 5412

JENNIFER L. HALL, U.S. MAGISTRATE JUDGE
Chicken processing plants generate wastewater. Before that wastewater can be discharged
into the ground, it must be treated so that it does not pollute the groundwater.
In 2017, a wastewater treatment plant operated by chicken processor Mountaire Farms of
Delaware, Inc. (“Mountaire”) suffered a system failure. The failure resulted in Mountaire spraying
wastewater that contained a high concentration of nitrates onto fields in Millsboro, Delaware.
Nitrates can percolate into the groundwater, and water containing a high nitrate concentration is
unsafe to drink.
This litigation began in 2018 when the State of Delaware Department of Natural Resources
and Environmental Control (“DNREC”) sued Mountaire for violations of federal environmental
statutes in connection with the 2017 system failure. DNREC and Mountaire have now negotiated
an agreement to resolve the dispute and they want the Court to enter it as a consent decree.
It is not the Court’s role to ensure that DNREC negotiated an ideal consent decree. And
the Court cannot rewrite the consent decree. The Court’s role is limited to ensuring that the
compromise resolution negotiated by DNREC is fair, adequate, and reasonable, as well as
consistent with the public interest.

United States v. Comunidades Unidas Contra La

Contaminacion, 204 F.3d 275, 279 (1st Cir. 2000); cf. In re Tutu Water Wells CERCLA Litig., 326
F.3d 201, 210 (3d Cir. 2003). For the reasons briefly summarized below, I conclude that it is.
DISCUSSION
DNREC has been delegated the authority to enforce certain federal environmental statutes,
including the Federal Resources Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
(“RCRA”), and the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”). Pursuant to the RCRA’s
hazardous waste permitting program, DNREC issues permits that establish the waste management

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activities that a facility can conduct and the conditions under which it can conduct them. A facility
generally cannot dispose of hazardous waste without a permit. A permit requires, among other
things, that the facility comply with any applicable regulations promulgated by the Environmental
Protection Agency (“EPA”), and the permit sets forth requirements for the facility to monitor and
report its activities.
Mountaire operates a chicken processing plant in Millsboro, Delaware. The plant’s
wastewater treatment facility suffered a system failure in September 2017, which resulted in the
plant discharging wastewater with constituent concentrations in excess of its permit limits.
DNREC subsequently filed this suit, alleging that Mountaire violated the RCRA, 42 U.S.C.
§§ 6972(a)(1)(B) and 6945(a), and the CWA, 33 U.S.C. § 1311(a), in connection with the system
failure as well as prior to the system failure.
Before the Court is DNREC’s Motion for Entry of First Amended Consent Decree
(“FACD”). (D.I. 108.) Defendant Mountaire supports entry of the FACD. (D.I. 115.) Gary and
Anna-Marie Cuppels live near Mountaire’s Millsboro plant, and they successfully sought
intervention in these proceedings. The Cuppels initially opposed entry of the FACD (D.I. 116),
but they have now withdrawn their objections (D.I. 143).
“[A] consent decree must bear the imprimatur of a judicial judgment that it is fair, adequate,
reasonable, and consistent with the objectives of Congress.” Comunidades Unidas Contra La
Contaminacion, 204 F.3d at 279. Prior to the withdrawal of Intervenors’ objections, the Court
reviewed hundreds of pages of information and expert reports provided by the parties, and the
Court also held a full-day hearing. As a result of its thorough review of the record in connection
with the now-withdrawn objections, the Court is satisfied that the FACD meets the applicable legal
requirements for entry.

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As to the procedural fairness of the FACD, the Court is satisfied on this record that it was
appropriately negotiated and agreed upon in good faith. The record further indicates that the
original proposed consent decree was open for public comment and that the FACD incorporates
additional obligations imposed after consideration of public comments and the Cuppels’
objections.
The Court cannot say that the FACD is substantively unfair. Although it gives Mountaire
time to get itself into compliance, it requires Mountaire to ultimately conform its conduct to the
law. It also requires Mountaire to mitigate and remediate alleged harm caused by its alleged past
conduct.
Having reviewed the voluminous record, the Court is also satisfied that the FACD is
adequate, reasonable, and consistent with Congressional objectives. While it not the role of this
Court to second-guess DNREC’s expertise, the Court nevertheless finds persuasive DNREC’s and
Mountaire’s evidence and arguments regarding the appropriateness of the civil penalty and interim
and long-term obligations that Mountaire is required to undertake. The Court also bears in mind
that a consent decree, by its nature, represents a compromise arrived at by a government agency
in the exercise of its experience and judgment. This Court cannot say on this record that DNREC’s
determination of the appropriate obligations to impose on Mountaire amounts to an “abandonment
of judgment.” Id. at 282.
CONCLUSION
The record supports a finding that the FACD is fair, adequate, reasonable, and consistent
with the objectives of Congress. Accordingly, the Court will enter it.

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