On Wednesday, a Delaware community surrounding a Mountaire poultry processing plant gave the company notice that in 90 days it would sue the plant for polluting its drinking water, claiming that the company was threatening the health of its neighbors by over-spraying manure.
“We welcomed Mountaire, thinking that they would be a good neighbor,” said Gina Burton during a press call. She used to live next to the Mountaire poultry plant in Millsboro, Delaware, which was built on land that decades ago had belonged to her grandfather. But Mountaire’s excessive spreading of manure and other waste, the community said, has resulted in high nitrate levels in the drinking water, which is linked to serious health problems. “This has affected our families for a long, long time,” Burton said. The community plans to sue the company under the federal Resource Conservation and Recovery Act (RCRA).
The Millsboro processing plant, which slaughters about 2 million chickens a week, produces 2.4 million gallons of waste each day, according to a letter signed by dozens of plaintiffs and sent to Mountaire. That waste is stored in lagoons, and the liquid waste is sprayed onto nearby fields.
The plaintiffs argue that Mountaire’s mishandling of the waste has presented an “imminent and substantial endangerment to health and the environment,” and that the company “has injured or threatened to injure … the health, environmental, and economic interests” of the community. The plaintiffs are represented by Public Justice, Food & Water Watch, Nidel & Nace in Washington, D.C., and Jacobs & Crumplar in Wilmington, Delaware.
Mountaire’s Millsboro plant was previously cited for mishandling waste. In November 2017, Delaware regulators sent the plant a violation notice after excess nitrates were found in groundwater around the plant. Bacteria found in the company’s sprayed wastewater, particularly fecal coliform, was recorded at more than 5,000 times the legal limit.
When fecal coliform is ingested, it can cause severe gastrointestinal issues. Drinking water that contains excess nitrates can result in a variety of serious health effects, including low blood pressure, abdominal cramps, vomiting, and “blue baby” syndrome in infants. Several people in Millsboro said they suffered from those problems.
As a result of the violation, the company was required to provide the farm’s neighbors with cases of bottled water as it worked to clean up the contamination. But the neighbors say it wasn’t enough. “The amount of water that they give us every week is not enough to use for everyday use,” Burton said.
And Jessica Culpepper, a staff attorney at Public Justice who is one of the lawyers representing the plaintiffs, says that providing bottled water is not a sufficient remedy to the problem. “It is not acceptable to poison the water and then send neighbors bottled water, so they can keep operating business as usual,” she said during the press call.
The poultry industry is a powerful economic and political force in Delaware, one of the leading broiler-producing states. Mountaire, though not a household name, is a dominant processor in the state, with about $2 billion in annual sales. Delaware, along with Maryland and Virginia, is the site of some of the most intensive broiler production in the country — and some of the worst environmental effects of intensive livestock farming. Groundwater in the region “has some of the highest nitrate levels in the nation,” Tarah Heinzen, a staff attorney at Food & Water Watch, said on the press call.
A noteworthy element of the pending lawsuit is its reliance on the Resource Conservation and Recovery Act. That law regulates groundwater pollution; the Clean Water Act, by contrast, regulates pollution of navigable waterways. The RCRA allows citizens to bring lawsuits when the government does not intervene to stop the environmentally unsound handling of solid and hazardous waste.
Still, there’s precedent for using the RCRA to fight agriculture-related pollution. In 2015, a community in Yakima, Washington, won a lawsuit by using the RCRA to argue that five area dairies had polluted their well water with nitrates. The victory expanded the RCRA’s reach to agriculture waste and provided a roadmap for other communities, like the one in Millsboro, to use the law to fight pollution from large-scale livestock production.
But the successful case also brought pushback from legislators who didn’t want to see the RCRA used to address problems caused by livestock production. Two years after the Yakima victory, in February 2017, Republican Rep. Dan Newhouse, who represents Yakima in Congress, introduced the Farm Regulatory Certainty Act. The act would formally exclude agricultural animal waste, manure, and fertilizer from the RCRA’s requirements, making it impossible for communities to use the law to protect their drinking water.
At a hearing on the Farm Regulatory Certainty Act in November 2017, Culpepper argued that the RCRA complements other existing water regulations, and that “this system fits together like the gears of a clock that will not work unless citizens have the right to enforce them.” She said that the passage of the new bill “would preclude rural Americans from enforcing the only law protecting their access to clean water.”
“The Farm Regulatory Certainty Act would allow governments to do even less than they currently do, and take away our last avenue of legal recourse,” testified Lynn Utesch, a farmer in Wisconsin and co-founder of Kewaunee Citizens Advocating Responsible Environmental Stewardship. “If someone pollutes the water our entire community relies on, and they refuse to change, and the government refuses to adequately fix the problem, this bill would destroy our last resort to protect our own drinking water.”
Proponents of the Farm Regulatory Certainty Act argue that agriculture is already heavily regulated, and that citizen water suits threaten agricultural businesses. Newhouse currently has 68 co-sponsors for the bill.
As for Mountaire, it has 90 days to address the harms alleged in the letter before the lawsuit is filed. Even if the company does settle the claims made under the RCRA, the community members said they are still likely to sue, seeking compensation for drinking contaminated water, for property value loss, and for other personal injuries.