Mountaire fined over irrigation, application violations

Mountaire Farms’ Millsboro processing plant on John J. Williams Highway east of Millsboro. (Delaware State News/Glenn Rolfe)

DOVER — Delaware’s Department of Natural Resources and Environmental Control last week announced a signed agreement with Mountaire Farms of Delaware, Inc. structured to resolve spray-cited irrigation and land application permit violations.

The Dec. 13 agreement follows DNREC’s initial June 2018 action against Mountaire for alleged violations via the filing of a complaint in Delaware Superior Court against Mountaire. The 2018 complaint was stayed by Delaware Superior Court pending resolution of a parallel action in federal court.

Mountaire faces several lawsuits filed in 2018 representing hundreds of area residents over suspected groundwater contamination that include high nitrate levels.

To formalize ongoing and required corrective actions resulting from the September 2017 wastewater treatment plan failure, DNREC and Mountaire have finalized an agreement based on the consent decree proposed in June 2018.

According to DNREC, the agreement includes three major components: mitigation, environmentally beneficial offset and an administrative penalty and costs. Mountaire is required to mitigate damage to the environment through short-term and long-term corrective measures.

The agreement also requires Mountaire to pay an administrative civil penalty of $600,000 for violations of its spray and land application permits, and to reimburse the DNREC $25,000 for expenses incurred during the department’s investigation.

In consideration of the environmentally beneficial offset, the department will reduce Mountaire’s penalty by 30 percent to $420,000.

DNREC Secretary Shawn M. Garvin said it was important “to get to a point where any outstanding issues are addressed or a path forward (toward an appropriate resolution) is defined.”

Public input for the new consent decree will be taken, though the mechanisms are still to be finalized and announced, Secretary Garvin said.

He added that DNREC is committed to addressing situations transparently and “in a quick and timely manner so that everyone has the sense that those issues are being paid attention to.”

In a prepared company statement issued by Mountaire spokeswoman Catherine Bassett, Mountaire stated, “We are ready to move forward and glad that this agreement allows us to do that. This will bring closure on all outstanding issues with DNREC and it’s time the permitting process moves forward. We have been completely transparent with DNREC every step of the way, and our team has worked hard to make improvements at our existing plants while getting ready for construction of a new, state-of-the-art wastewater system in Millsboro to begin.”

In the short term, Mountaire must continue the interim corrective measures required by DNREC that have been ongoing since October 2017.

Under the agreement, Mountaire must also make long-term system upgrades to the plant, including the requirement for environmental mitigation through the relocation of Mountaire’s production wells within the spray fields to establish a pump and treat system.

By way of an environmentally beneficial offset, the agreement with DNREC requires Mountaire to offer nearby residents options for an alternative water supply, meaning an option for a whole-house filtration system in addition to the public water supply and deeper well provisions of the earlier consent decree, according to DNREC.

“I am still amazed that two years after this, these folks still don’t have a permanent supply of clean water. That just blows my mind,” said Maria Payan, a consultant with the nonprofit Socially Responsible Agriculture Project. “The regulatory agencies, they have to share the blame with a whole bunch of other people that have oversight.”

“It’s sort of the same old story,” said Milton resident Keith Steck, vice president of the Delaware Coalition for Open Government. “You want to be hopeful that this would address a lot of things but from what I understand it still doesn’t address certain things.”

“I don’t understand why we are weakening things from the original agreement,” said Ms. Payan. “To me, this seems like Mountaire made out incredibly well in this new consent order. I don’t understand why, when all this damage to communities is being done. It never ceases amaze me. There is just too much power. This is a slap in the face to the people have suffered from this — and quite frankly our environment.”

The agreement updates the consent decree by including more specificity concerning reporting requirements; adding the whole-house filtration option as an alternative water supply; requiring more specificity on tracking and reporting of mitigation efforts; and clarifying mitigation goals, including that Mountaire’s pump and treat system will be maintained as a permanent part of the facility upgrade.

Consent decree entry

The agreement became effective when it was executed on Friday, but DNREC will request the agreement be entered by the federal court as a consent decree, and that, once entered, the court will have immediate jurisdiction to oversee and enforce the agreement.

In addition to formalizing an agreement with Mountaire regarding the 2017 violations, DNREC and Mountaire also entered into a conciliatory agreement to address unresolved violations at Mountaire’s Selbyville facility, as well as other violations at the Millsboro facility not directly related to the 2017 wastewater treatment facility failure.

Issues addressed via the conciliatory agreement include:

• unauthorized discharges of pollutants from live-hold areas at the Selbyville and Millsboro facilities;

• an unauthorized release of partially treated wastewater effluent to ground surface at the Millsboro facility due to an equipment weld failure; and

• temporary sludge storage lagoon issues that include synthetic liner concerns and elevated ammonia levels noted in monitoring wells surrounding the temporary sludge storage lagoon at the Millsboro facility.

The conciliatory agreement requires corrective actions and mitigation measures to prevent future violations and includes administrative and stipulated penalties.

As a condition of the conciliatory agreement, Mountaire is required to pay an administrative penalty in the amount of $230,000. Mountaire is able to offset up to $115,000 of the assessed administrative penalty by performing a wetlands restoration and/or enhancement project on the Indian River or on Swan Creek with department approval.

“DNREC is giving Mountaire a potential ‘out’ if it does some ‘quote’ environmental projects. It will reduce its fine, and I have a real problem with that,” said Mr. Steck. “This company has had a history of environmental problems. DNREC has had a history of going easy on these companies. Here is another example of it. First of all, the fine I don’t think is adequate. Secondly, there should be no reduction in the amount of the fine. I don’t care if they do a project or not. In fact, maybe they ought to do both, pay a fine and this project.”

“The problem still is not fixed. The original fine has not been paid and has been reduced and is now including fines from their other facilities,” said Ms. Payan. “This is a beautiful state and we have treasures here with our natural resources. But there’s such a fine line to balancing this. At some point somebody has to have enough foresight to say, ‘Look, no one is trying to put you out of business, but you do need to meet permit levels. You do need to act responsibly. There does need to be repercussions.’”

“Knowing the history and knowing the earlier version of this, I am just skeptical,” said Mr. Steck.

Both agreements can be found on the DNREC website at www.dnrec.delaware.gov.

Background

On Sept. 5, 2017, Mountaire reported to DNREC that the Millsboro wastewater treatment facility was in failure due to a buildup of solids throughout the plant, as well as a depletion of oxygen in the plant’s aerobic operations, causing Mountaire’s wastewater to exceed the effluent limits of their spray permit. Mountaire undertook interim action to reduce the solids from spray effluent and disinfect effluent prior to its application on the spray fields.

In November 2017, Mountaire submitted a corrective action work plan setting forth interim measures and proposed long-term measures for permit compliance.

On Nov. 2, 2017, DNREC issued a Notice of Violation (NOV) identifying a total of 17 categories of permit violations, including 13 categories of spray permit violations, and four categories of land application permit violations.

On Dec. 22, 2017, DNREC supplemented the NOV requiring additional corrective actions by Mountaire for violations of both permits. Subsequent interim measures by Mountaire resulted in significant improvements in the quality of the effluent from the wastewater treatment plant, according to DNREC. Full permit compliance is not expected to be consistently achieved until Mountaire completes a planned long-term wastewater treatment plant upgrade.

Comment period extended

In a related issue, a public hearing was held Nov. 5. before Sussex County Council on Mountaire Farms of Delaware, Inc.’s request to grant a conditional use of land in an Agricultural Residential District and General Residential District for sludge and wastewater spray irrigation on approximately 351 acres. The land is not far from Mountaire’s current spray fields along Del. 24.

Sussex County Council gave agencies until the close of business on Dec. 9 to provide responses, which were reported to county council Dec. 10, and a five-day period was given for written responses to those comments.

“Staff are requesting that that period be extended,” said Jamie Whitehouse, county planning and zoning manager at the Tuesday council meeting.

“Because there was something that we left out of process, that is now available to the public,” said county council president Michael Vincent.

Public comment period for written responses related to DNREC/agency responses was extended for five business days, to the close of business Thursday, Dec. 26.

The information can be found on the county website using the following link: 

https://sussexcountyde.gov/sites/default/files/packets/CU%202186%20DNREC%20Response%20to%20Sussex%20Planning%20and%20Zoning.pdf

Comments should be sent to the Sussex County Planning & Zoning Office. The email on the website for the department can be used. See the following link: https://sussexcountyde.gov/contact-us?id=87