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`C.A. No. 18-838-JLH
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`and
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`Plaintiffs-Intervenors,
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`GARY and ANNA-MARIE CUPPELS,
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`v.
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`MOUNTAIRE FARMS OF
`DELAWARE, INC.,
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`Defendant.
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`Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 1 of 4 PageID #: 5411
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`STATE OF DELAWARE
`DEPARTMENT OF NATURAL
`RESOURCES &
`ENVIRONMENTAL CONTROL,
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`Plaintiff,
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`MEMORANDUM OPINION
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`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.
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`April 12, 2021
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`Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 2 of 4 PageID #: 5412
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`JENNIFER L. HALL, U.S. MAGISTRATE JUDGE
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`Chicken processing plants generate wastewater. Before that wastewater can be discharged
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`into the ground, it must be treated so that it does not pollute the groundwater.
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`In 2017, a wastewater treatment plant operated by chicken processor Mountaire Farms of
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`Delaware, Inc. (“Mountaire”) suffered a system failure. The failure resulted in Mountaire spraying
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`wastewater that contained a high concentration of nitrates onto fields in Millsboro, Delaware.
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`Nitrates can percolate into the groundwater, and water containing a high nitrate concentration is
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`unsafe to drink.
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`This litigation began in 2018 when the State of Delaware Department of Natural Resources
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`and Environmental Control (“DNREC”) sued Mountaire for violations of federal environmental
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`statutes in connection with the 2017 system failure. DNREC and Mountaire have now negotiated
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`an agreement to resolve the dispute and they want the Court to enter it as a consent decree.
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`It is not the Court’s role to ensure that DNREC negotiated an ideal consent decree. And
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`the Court cannot rewrite the consent decree. The Court’s role is limited to ensuring that the
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`compromise resolution negotiated by DNREC is fair, adequate, and reasonable, as well as
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`consistent with the public interest. United States v. Comunidades Unidas Contra La
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`Contaminacion, 204 F.3d 275, 279 (1st Cir. 2000); cf. In re Tutu Water Wells CERCLA Litig., 326
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`F.3d 201, 210 (3d Cir. 2003). For the reasons briefly summarized below, I conclude that it is.
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`DISCUSSION
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`DNREC has been delegated the authority to enforce certain federal environmental statutes,
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`including the Federal Resources Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
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`(“RCRA”), and the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”). Pursuant to the RCRA’s
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`hazardous waste permitting program, DNREC issues permits that establish the waste management
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`2
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`Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 3 of 4 PageID #: 5413
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`activities that a facility can conduct and the conditions under which it can conduct them. A facility
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`generally cannot dispose of hazardous waste without a permit. A permit requires, among other
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`things, that the facility comply with any applicable regulations promulgated by the Environmental
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`Protection Agency (“EPA”), and the permit sets forth requirements for the facility to monitor and
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`report its activities.
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`Mountaire operates a chicken processing plant in Millsboro, Delaware. The plant’s
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`wastewater treatment facility suffered a system failure in September 2017, which resulted in the
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`plant discharging wastewater with constituent concentrations in excess of its permit limits.
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`DNREC subsequently filed this suit, alleging that Mountaire violated the RCRA, 42 U.S.C.
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`§§ 6972(a)(1)(B) and 6945(a), and the CWA, 33 U.S.C. § 1311(a), in connection with the system
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`failure as well as prior to the system failure.
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`Before the Court is DNREC’s Motion for Entry of First Amended Consent Decree
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`(“FACD”). (D.I. 108.) Defendant Mountaire supports entry of the FACD. (D.I. 115.) Gary and
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`Anna-Marie Cuppels live near Mountaire’s Millsboro plant, and they successfully sought
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`intervention in these proceedings. The Cuppels initially opposed entry of the FACD (D.I. 116),
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`but they have now withdrawn their objections (D.I. 143).
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`“[A] consent decree must bear the imprimatur of a judicial judgment that it is fair, adequate,
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`reasonable, and consistent with the objectives of Congress.” Comunidades Unidas Contra La
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`Contaminacion, 204 F.3d at 279. Prior to the withdrawal of Intervenors’ objections, the Court
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`reviewed hundreds of pages of information and expert reports provided by the parties, and the
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`Court also held a full-day hearing. As a result of its thorough review of the record in connection
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`with the now-withdrawn objections, the Court is satisfied that the FACD meets the applicable legal
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`requirements for entry.
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`3
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`Case 1:18-cv-00838-JLH Document 149 Filed 04/12/21 Page 4 of 4 PageID #: 5414
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`As to the procedural fairness of the FACD, the Court is satisfied on this record that it was
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`appropriately negotiated and agreed upon in good faith. The record further indicates that the
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`original proposed consent decree was open for public comment and that the FACD incorporates
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`additional obligations imposed after consideration of public comments and the Cuppels’
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`objections.
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`The Court cannot say that the FACD is substantively unfair. Although it gives Mountaire
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`time to get itself into compliance, it requires Mountaire to ultimately conform its conduct to the
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`law. It also requires Mountaire to mitigate and remediate alleged harm caused by its alleged past
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`conduct.
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`Having reviewed the voluminous record, the Court is also satisfied that the FACD is
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`adequate, reasonable, and consistent with Congressional objectives. While it not the role of this
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`Court to second-guess DNREC’s expertise, the Court nevertheless finds persuasive DNREC’s and
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`Mountaire’s evidence and arguments regarding the appropriateness of the civil penalty and interim
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`and long-term obligations that Mountaire is required to undertake. The Court also bears in mind
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`that a consent decree, by its nature, represents a compromise arrived at by a government agency
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`in the exercise of its experience and judgment. This Court cannot say on this record that DNREC’s
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`determination of the appropriate obligations to impose on Mountaire amounts to an “abandonment
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`of judgment.” Id. at 282.
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`CONCLUSION
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`The record supports a finding that the FACD is fair, adequate, reasonable, and consistent
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`with the objectives of Congress. Accordingly, the Court will enter it.
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`4
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