Mountaire Ground Water Contamination & Pollution

Attention Residents of Sussex County, DE

FOR IMMEDIATE RELEASE: June 13, 2018

CLASS ACTION LAWSUIT FILED AGAINST MOUNTAIRE

Millsboro, Delaware – The Delaware law firm of Baird Mandalas Brockstedt, LLC (BMB) in association with the Maryland firm of Schochor, Federico & Staton, P.A. (SFS), today filed a class action lawsuit against Mountaire Farms of Millsboro, Delaware.

I. FACTUAL BACKGROUND

Mountaire processes approximately two million chickens per week and generates more than two million gallons of wastewater and sludge per day. The waste from the facility includes feathers, dirt, fecal matter, blood, slaughtering wastewater, carcass parts, grit, sand, gravel, animal flesh, fat, grease chiller wastewater, processing wastewater, cleanup wastewater and sanitary waste from employees. Mountaire disposes of its waste by spray irrigation on more than 900 acres of croplands and sludge disposal through spray and injection application on at least 300 acres of croplands and forests in the Millsboro area.

BMB and SFS allege that the disposal of billions of gallons of highly contaminated wastewater and liquefied sludge has seeped into the groundwater throughout the area, causing nitrates and other contaminants to spread for miles and their concentrations to escalate to dangerously high levels. This has contaminated area drinking water wells that have caused Plaintiffs to suffer the health effects caused by the chronic exposure to elevated nitrates and other contaminants and diminished property values.

The Complaint seeks to force Mountaire to stop its wrongful discharge, establish a clean drinking water source, overhaul and update Mountaire's wastewater treatment plant to eliminate the discharge of highly contaminated wastewater and liquefied sludge, remediate the soils, and compensate affected residents for the decrease in property values and the health effects caused by the contamination.

II. PLAINTIFFS' EXPERTS

BMB and SFS have retained more than a dozen environmental experts and consultants in a variety of different fields including environmental engineering, spray irrigation of wastewater, sludge disposal, real estate valuation, hydrogeology, public health, treatment of poultry wastewater, and other specialties to fully uncover the scope and impact of Mountaire's wrongful conduct that has polluted the Millsboro area.

For the past six months, BMB, its consultants and experts have undertaken an extensive investigation of Mountaire's conduct that includes, obtaining and reviewing thousands of pages of documents on Mountaire's conduct and permits from DNREC, the EPA, the Delaware Center for the Inland Bays, the Delaware Geological Survey, and other sources; conducting well testing of over a hundred Millsboro residents; communicating with hundreds of Millsboro residents to monitor for health effects and other damages; and interviewing Millsboro residents and former Mountaire employees about Mountaire's wastewater practices. This exhaustive effort has enabled the experts to reach certain conclusions.

A. Mountaire's Wastewater Spray Irrigation has Contaminated the Groundwater and Nearby Surface Waters

Dane Bauer: wastewater spray irrigation expert with over 40 years' experience in regulating, permitting and compliance of spray irrigation of poultry wastewater both as a State official in Maryland and a private consultant working for Perdue and Tyson; Master's Degree in Environmental Health Sciences from Johns Hopkins University; developed Maryland's guidelines for spray irrigation of treated wastewater; former Director of Engineering and Operations for Maryland Environmental Services (MES) with responsibility for operating 10-12 wastewater spray irrigation systems; former Deputy Director of Water Management Administration for Maryland Department of the Environment (MDE) (#2 in entire state for water and wastewater regulation and enforcement); following retirement from MDE, became private consultant handling spray irrigation permitting and compliance for Maryland Eastern Shore chicken processing companies, County governments and developers for past 18 years.

Mr. Bauer's report, attached at Ex. J to the Complaint, includes the following conclusions:

  • "The historic record of Mountaire's water quality and drinking water standard violations is egregious. The permit exceedances and operating deficiencies resulted in significant violations of groundwater nitrate levels, sodium, and fecal coliforms which impact residents who live in the vicinity of the Mountaire spray fields."
  • "Mountaire's spray irrigation operations and permit issues leading to groundwater contamination, which have now been well documented by DNREC and EPA over the course of many years, in my opinion demonstrates a reckless indifference to permit conditions, environmental protection, and the citizens' rights to safe potable drinking water."
  • Once Mountaire violated the effluent limits, application rates and other conditions of its permit, Mountaire was "obligated to take whatever action necessary to achieve compliance. Those actions include higher treatment levels, lower application rates, and other mitigating measures. There is no evidence that Mountaire did any of these."
  • "Mountaire not only failed to meet its permit limits but also failed to follow industry-accepted practices for spray irrigation of wastewater, including the provision of adequate storage, limiting nitrogen applications to conservative uptake rates of crops, providing for sufficient resting periods between applications to spray fields, limiting application rates to seasonally suitable weather to avoid spraying during freezing conditions, wet conditions, and high wind conditions."
  • With knowledge of background nitrate concentration at 4.7mg/L, "Mountaire should have built in considerable safety factors into their treatment levels and application rates to prevent what has become a drinking water standard violation and public health threat to residents."

According to the report, the total cost estimate for a public/private water service and remediation could exceed $100M.

B. Mountaire's Wastewater Treatment System is Antiquated and Mismanaged

Kenneth Norcross: expert in treatment of poultry wastewater and sludge; design and troubleshooting consultant for multiple Cargill and Perdue poultry processing wastewater treatment plants; Environmental Engineering Degree and Master of Engineering Degree in Water Quality from Vanderbilt University; author of 19 patents focused on wastewater treatment; former vice president of the largest water company in North America and the world's largest water company.

Mr. Norcross' report, attached at Ex. C to the Complaint, includes the following conclusions:

  • "Mountaire's wastewater treatment plant (WWTP) has violated its permits routinely and often grossly for most of the 17 years that Mountaire has owned the facility."
  • "Most of the critical WWTP treatment units were built decades ago and thus represent antiquated technology."
  • "Annual reviews of Mountaire's WWTP by DNREC and others show 17 years of multiple failures to operate the WWTP competently."
  • "From the perspective of one who has been involved with the design, operation, and troubleshooting of hundreds of such WWTP's, the repeated and multiple failures of Mountaire's management oversight and WWTP plant operations demonstrate a pattern of incompetence, reckless decision making, and a continual lack of concern about the impact of the WWTP's discharges on human health and the environment."
  • "The gross ‘upset' of Mountaire's WWTP in 2017 was the predictable and inevitable result of a WWTP that was managed incompetently for many years and was foreseeable to Mountaire management if they acted responsibly and cared about the performance of the plant."
  • "The existing WWTP is inadequate to provide the effluent quality required under the current groundwater discharge permit and a major upgrading and expansion of both WWTP technology and operations management competency is necessary. Total cost estimate for the required WWTP upgrades and effluent storage lagoon is estimated at over $50 million."

C. Mountaire's Contamination of the Groundwater has Impacted and Continues to Threaten Drinking Water Wells

Dr. Harvey Cohen: expert Hydrogeologist in determining groundwater flow and contaminant transport; partner with S.S. Papadopulos & Associates, an internationally-recognized groundwater consulting firm headquartered near Washington D.C.; Ph.D. in Geological Sciences from Princeton University; evaluated groundwater contamination cases for more than 20 years.

Dr. Keir Soderberg: expert Geochemist/Hydrogeologist in linking contaminants in groundwater to the source of contamination; Geochemist and Senior Scientist with S.S. Papadopulos since 2000; PhD in Environmental Sciences from Princeton University; B.S. in Civil and Environmental Engineering from Princeton University.

Attached at Ex. L to the Complaint is the report authored by Drs. Cohen and Soderberg, which includes the following conclusions:

  • "Mountaire has contaminated, and continues to contaminate the shallow, unconfined Columbia aquifer with nitrate in excess of drinking water standards, as well as Swan Creek and Indian River, as a result of spray irrigation and sludge disposal practices."
  • "The groundwater contaminated by Mountaire has impacted, and continues to threaten domestic water supply wells downgradient of the spray irrigation and sludge disposal fields."
  • "The general direction of groundwater flow in the contaminated aquifer is away from spray irrigation and sludge disposal fields to the south, southeast and southwest, toward the Indian River, Swan River and Millsboro Pond."
  • "Average groundwater and nitrate travel times in the aquifer can be calculated conservatively to be about 300 to 500 feet per year, with higher velocities in parts of the aquifer."

D. Liquefied Sludge Application Has Contributed to the Contamination

Dr. Gregory Evanylo: expert in sludge disposal and its contribution to nitrate contamination of groundwater; Professor in Department of Crop and Soil Environmental Sciences at Virginia Tech for past 34 years; Ph.D. in Soil Chemistry and Fertility from the University of Georgia; author and editor of the Mid-Atlantic Nutrient Management Handbook.

Dr. Evanylo's report, attached to the Complaint at Ex. K, includes the following conclusions related to the application of liquefied sludge:

  • Mountaire's sludge application violations cited in DNREC's November 2, 2017 Notice of Violation "are consistent with mismanagement practices that can increase groundwater nitrate concentrations to excessive levels."
  • "It is likely that the increase in groundwater monitoring well nitrate concentration is the result of excessive application of sludge by Mountaire."

E. The Chronic Exposure to Elevated Nitrates is a Serious Health Risk

Dr. Catherine Zeman: Public Health/Epidemiology expert in the Health Effects of Nitrates in Drinking Water; Ph.D. from University of Iowa in Preventive Medicine with emphasis in Environmental and Occupational Health; Professor of Environmental Health at the University of Northern Iowa for the past 18 years; co-author of peer reviewed journal article on the study of negative impacts on human immune systems from nitrate exposure; primary author of journal articles on the study of human health effects of nitrate in private wells, including arthritis, reduction of immune system effectiveness and impacts on infants; familiar with dozens of studies and journal articles relating to the health effects of nitrates in drinking water.

A copy of Dr. Zeman's report, attached at Ex. M to the Complaint, includes the following conclusions:

  • "Elevated levels of nitrates above natural background in drinking water create a substantial risk for multiple negative health outcomes."
  • "The World Health Organization's International Agency for Research on Cancer (IARC) declared nitrate a probable human carcinogen in 2010."
  • "Thirty studies reviewed here have found statistically significant associations between a variety of chronic disease outcomes, including cancer mortality at levels less than 10 ppm nitrate-nitrogen, especially when the nitrate is consumed in water unopposed by antioxidant rich fruit and vegetable substances."
  • "These thirty studies support a conclusion that nitrate levels above 5 ppm nitrate-nitrogen in drinking water present an unnecessarily high and unacceptable public health risk."
  • "When consuming nitrate in drinking water, these studies illustrate that the higher the concentration of nitrate consumed for longer periods of time, the greater the health risk from a chronic disease perspective."

F. Mountaire's Air Pollution and Odors Significantly Impact Plaintiffs

Mountaire's wastewater treatment facilities generate huge quantities of hydrogen sulfide and other toxic and malodorous gases that are emitted to the atmosphere and travel to Plaintiffs' homes and properties. In addition, Mountaire's spray irrigation operations and its disposal of sludge by spraying and surface application release massive amounts of malodorous ammonia and other chemicals into the air which are transported by wind and dispersion to nearby properties.

John Purdum: meteorologist and expert air quality consultant who has been performing air quality modeling analyses since 1978; BS in Meteorology from the University of Massachusetts Lowell.

A copy of Mr. Purdum's report, attached at Ex. O to the Complaint, includes the following conclusions:

Results from a U.S. Environmental Protection Agency screening model indicate that it is likely that hydrogen sulfide, a poisonous gas that smells like rotten eggs, reaches most if not all of the Plaintiffs' properties at levels that exceed the Delaware hourly standard of 0.03 ppm. The screening model results also show concentrations of ammonia at properties near Mountaire's spray irrigation and sludge disposal areas that exceed the acute duration (1.7 ppm) and chronic duration (0.1 ppm) Minimal Risk Levels ("MRLs") for ammonia established by the U.S. Agency for Toxic Substances and Disease Registry ("ATSDR")

ATSDR has concluded that exposure to low levels of hydrogen sulfide can cause respiratory and neurological effects including eye, nose and throat irritation, difficulty breathing in people with asthma, headaches, poor memory, tiredness and balance problems. ATSDR based its MRLs for ammonia on studies showing eye, nose and throat irritation from exposure to ammonia.

DNREC's regulations require that no person shall cause or allow the emission of an odorous air contaminant that significantly affects the citizens of the State outside the boundaries of the air contaminant source.

G. Additional Experts

BMB and SFS consulted with experts to provide opinions on real estate valuation and how the Mountaire contamination has significantly decreased property values. Additionally, medical experts have been consulted concerning specific illnesses proximately caused by the chronic exposure to elevated nitrates.

III. THE AGREEMENT (PROPOSED CONSENT DECREE) BETWEEN MOUNTAIRE AND DNREC DOES NOT SOLVE THE PROBLEMS AND IS WHOLLY INADEQUATE

BMB repeatedly reached out to DNREC offering its environmental experts and consultants to DNREC to assist in finding a solution to the contamination caused by Mountaire. BMB sent a letter to DNREC Secretary Shawn Garvin on May 2, 2018, describing the experienced Ph.D. experts and college professors willing to assist DNREC's staff (at no cost to DNREC) in understanding Mountaire's technical problems and explaining how to fix them. That letter and four follow-up emails to DNREC's lawyers were ignored.

Instead of accepting the invitation and opportunity to work with leading experts in the field of wastewater treatment operations, spray irrigation and sludge disposal, Mountaire chose to work with DNREC behind closed-doors without the benefit of their expertise to reach an agreement memorialized in the proposed Consent Decree. The process was not transparent and importantly, the negotiations between DNREC and Mountaire did not involve the more than 700 affected residents of Millsboro who the decree is supposed to protect but clearly does not.

BMB moved to intervene on behalf of their clients and objected to the proposed Consent Decree because it is wholly inadequate and fails to address the issues that caused the widespread contamination. The Consent Decree is deficient in many substantial respects that include the following:

  • There is no requirement that Mountaire meet the nitrate drinking water standard set forth by the Environmental Protection Agency, no requirement for adequate effluent storage, no requirement to repair or replace leaking lagoons, no requirement to meet a certain nitrogen level in the spray water and no requirement to address sludge fields and forests that have been sprayed and injected with Mountaire's contaminated sludge over the past 18 years.
  • While the Consent Decree considers a potential public water system, there is no absolute requirement for a public water system, which is necessary to ensure that Millsboro residents receive safe drinking water. Moreover, the scope of the proposed public water system fails to address groundwater contamination for most of those affected by Mountaire's conduct including more than 500 of counsel's clients who live near Mountaire's spray fields and sludge disposal areas.
  • Mountaire is given at least 2 years to upgrade their wastewater plant while continuing to spray nitrogen at levels that admittedly are not meeting the current permit requirements because the existing plant is still failing.
  • The consent order provides that "nothing contained herein shall prevent Mountaire for any reason from discontinuing its poultry processing operations casting significant doubt on the ability of DNREC to enforce the provisions contained in the document and ignoring the April, 2017 certification by Mountaire's President and Chief Executive Officer as true and complete under penalty of perjury, that if there were a major technical malfunction or human error causing a change in its wastewater discharge that continues and cannot be contained by the storage at the plant, "live haul operations will be interrupted and the processing plant (will be) shut down."
  • This last item warrants further explanation. Despite being on notice of its inadequate and failing wastewater treatment plant, Mountaire applied to DNREC in May of 2017 to expand its chicken process production at the Millsboro plant by adding a third shift that would increase the volume of wastewater and the amount of nitrogen disposed on the spray fields by 18%. The permit application certified by the President and Chief Executive Officer as true and complete under the penalty of perjury, states that if there is a technical malfunction or human error causing change in the wastewater that cannot be stored at the plant, "live haul operations will be interrupted and the processing plant [will be] shut down."
  • Mountaire has admitted that it had an "upset" in August of 2017 and that it caused exceedingly high levels of nitrates to be discharged onto the fields and croplands in Millsboro. Mountaire has said publicly that this was caused by "human error." Despite the President's promises under oath in the application to increase its production, Mountaire did not interrupt live haul operations or shut down its processing plant. Rather, it continued to process chicken and discharge two million gallons of nitrogen filled wastewater every day in gross violation of its permit, the regulations and industry standards.

Based on a review of the information currently available, Plaintiffs' experts predict the total cost for all remediation could exceed $150M.

IV. MOUNTAIRE DENIES RESPONSIBILITY AND TRIES TO BLAME OTHERS

In the April 27, 2018 edition of the Cape Gazette, Mountaire advertised its response to the April 9, 2018 report issued by the independent Delaware Center for the Inland Bays (with assistance from the Delaware Geological Survey) in which it condemned Mountaire's wastewater discharge practices. Mountaire completely denies responsibility for its wrongful discharge of highly contaminated wastewater and advertised the following:

  • "Historical agricultural practices" along with the use of "septic systems and cesspools" is the cause of exceedingly elevated nitrates in the areas of its plant, spray and sludge fields and forestlands;
  • It attacks the report for being unbalanced and uncomprehensive; and
  • The report singled out Mountaire and did not criticize other poultry processing plants.
  • Instead of acknowledging the scope and severity of the problems caused by its wrongful discharge of hundreds of billions of gallons of wastewater and sludge on more than 1200 acres in Sussex County, Mountaire attacked an independent environmental group with baseless allegations unsupported by any factual data or empirical evidence.
  • Similarly, when BMB moved to intervene and object to Mountaire's sweetheart deal with DNREC in which Mountaire will be able to continue processing its two million chickens per week while creating more than two million gallons of wastewater and sludge per day without solving the issues that caused the contamination, Mountaire chose to attack the lawyers representing the more than 700 affected residents instead of addressing how to fix the problem.

Mountaire's strategy to avoid a factual debate and simply attack those who criticize is predictable yet disappointing. It further demonstrates its refusal to acknowledge the havoc it has wrought on area residents and the permanent damage it caused (and continues to cause) to the environment. Mountaire's refusal to accept responsibility requires intervention. Mountaire must be held wholly accountable.

V. THE CLASS ACTION LAWSUIT IS NECESSARY

BMB and SFS requested a meeting with Mountaire's lawyers on multiple occasions. Mountaire refused to meet to discuss the case, the scope and severity of the contamination, its effects on area residents or a potential resolution. Instead, Mountaire chose to hold a Town Hall meeting at which management denied responsibility and local politicians and state officials spoke in support of Mountaire.

As set forth above, DNREC denied those affected by the contamination the ability to participate, ignored (and continues to ignore) BMB's offer to make its experts available (at no cost to DNREC) and work together to find a workable solution.

Mountaire is a large corporation that employs many Sussex County residents. It also keeps many chicken growers in business throughout the Eastern Shore. A class action lawsuit is the appropriate legal modality to include all victims in a civil claim where a giant corporation like Mountaire has grossly and egregiously wronged an entire community. This lawsuit will not put Mountaire out of business. However, the lawsuit is necessary because Mountaire refuses to accept responsibility.

To be clear, the lawsuit is intended to require Mountaire to do the following:

  • Stop polluting the Millsboro area;
  • Overhaul its wastewater treatment plant and discharge processes;
  • Provide clean and safe drinking water to affected residents;
  • Remediate the groundwater and clean up its mess;
  • Compensate affected residents for their loss of property values; and
  • Compensate those that are suffering sicknesses caused by the exposure to elevated nitrates, hydrogen sulfide, ammonia and other contaminants.

Instead of acknowledging the problem and a willingness to make some changes, Mountaire denies responsibility. Without any substantive response to the allegations or the opinions of the experts it attempts to side-step the issues and shift the focus by blaming the lawyers who represent nearby residents who have been impacted by Mountaire's reckless disregard for their health, safety and welfare. Mountaire does not want the lawyers involved because it would prefer to continue to make sweetheart deals with DNREC, process chickens and discharge its wastewater, sludge and malodorous air pollutants into the local community so that it can continue to make more than $2 billion annually.

Mountaire must be held accountable. The residents of Millsboro need help. Now they have it.

Have you been affected by the Mountaire groundwater contamination? If so, you have rights. We have experience handling large and complex cases like this. We are working to understand the severity of the contamination and its effect on the residents of Sussex County, Delaware. This contamination has caused physical injuries, property damage and, ultimately, will require a permanent solution. There is evidence to suggest that this is not a recent problem and understanding Mountaire's various permits, activities and all of the different aspects of the contamination are the priorities. Our firm is working with environmental engineers and hydrologists to assess the contamination, determine liability and devise a legal strategy going forward. We need your help and participation.

Complaints and Exhibits

To find out more or to tell us your story call our firm at 302-645-2262 or use the contact form below to schedule a consultation.

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Additional Sources

Mountaire Pollution

Neighbors Hopeful For Class Action Suit Against Mountaire Farms - WBOCl

Chase Brockstedt, an attorney with Baird, Mandalas, Brockstedt LLC, exclusively announced to WBOC about a class action lawsuit will be filed against Mountaire Farms on Wednesday morning.

Mountaire Pollution

Mountaire offers to dig new wells for 88 Millsboro-area neighbors; some aren't appeased - The News Journal

The Sussex County chicken plant accused of polluting groundwater near Millsboro now says it will pay to dig deeper wells for 88 of its neighbors or connect them to a public water supply.

Mountaire Pollution

Millsboro-area neighbors don't trust Mountaire to clean their water - The News Journal

Phillips’ home is one of about 80 in the area that gets its drinking water from wells now identified as at risk of contamination from high levels of nitrates and other substances released by Mountaire’s poultry plant.

Mountaire Pollution

UPDATE: Mountaire cited for contaminating groundwater - Cape Gazette

State officials say Mountaire Farms’ Millsboro plant has been polluting groundwater and failing to comply with its state permit to dispose of wastewater on nearby farm fields.

Mountaire Pollution

Mountaire Farms: Tainted neighborhood wells not our fault - The News Journal

Mountaire Farms and elected officials say they do not believe recent problems at its Millsboro-area chicken plant's wastewater facility are to blame for high nitrate levels in neighbors' wells.

Mountaire Pollution

Locals vent frustration in meeting with Mountaire Farms - ABC 47

Mountaire Farms, the poultry company has been under fire since last year, when they were cited for contaminating ground water in the area. Wednesday night, they attempted to defend their role in the contamination of local drinking water.

Mountaire Pollution

Mountaire Farms Meets Angry Residents About Water Contamination - NBC WRDE

Mountaire's legal team did not answer many questions because of potential litigation. They believe their company is not responsible for the recent water contamination.

Mountaire Pollution

Mountaire Addresses Contaminated Water Concerns in Public Meeting - WBOC

Mountaire Farms held a public meeting Wednesday night in Millsboro to discuss neighbors' concerns about nitrate contamination in private well water.

Mountaire Pollution

Delaware Center for Inland Bays Starts Sub-Committee After Mountaire Contamination - WBOC

Mountaire Farms and elected officials say they do not believe recent problems at its Millsboro-area chicken plant's wastewater facility are to blame for high nitrate levels in neighbors' wells.

Mountaire Pollution

Millsboro neighbors: How long have we been drinking tainted water? - The News Journal

Lisa McCabe never gave much thought to the poultry processing plant a little more than a mile from her home, other than holding her nose from the stench.

Mountaire Pollution

Class action lawsuit claims 'egregious' water standard violations by Mountaire - Delmarva Now

After years of what experts are calling a "gross" violation of poultry wastewater and sludge contamination, a Delaware law firm filed a class action lawsuit Wednesday representing nearly 700 residents against Mountaire Farms in Millsboro.

Mountaire Pollution

Mountaire Farms Fires Back Over Class Action Lawsuit - WBOC

Mountaire Farms is firing back against lawyers who have filed a class-action lawsuit stemming from wastewater violations at its Millsboro processing plant.

Mountaire Pollution

Mountaire Named In $150 Million Class Action Lawsuit - WBOC

A law firm in Delaware has filed a class action lawsuit on behalf of several hundred Millsboro residents who say their water is contaminated by Mountaire Farms' Millsboro plant.

Mountaire Pollution

Mountaire Farms faces class-action lawsuit Wednesday over wastewater violations - The News Journal

Nearly 700 people will be part of a class action lawsuit against a Delaware poultry processor over wastewater violations.

Mountaire Pollution

Report: Mountaire has contaminated water near its Millsboro-area plant for years - The News Journal

Late last week Mountaire Farms said it is physically impossible that recent wastewater violations at its Millsboro-area chicken plant are to blame for pollution found in nearby drinking water wells.