- Associated Press - Wednesday, July 29, 2020

DOVER, Del. (AP) - Delaware’s Supreme Court has rejected an attempt by state environmental regulators to challenge a judge’s decision ordering them to turn over information to property owners suing a poultry processing company over wastewater violations.

A three-judge panel ruled Tuesday that the Department of Natural Resources and Environmental Control had not met the strict standards for certifying an interlocutory review of the judge’s April ruling.

An interlocutory appeal is a challenge to a court ruling in a lawsuit before the lawsuit itself is decided. Interlocutory appeals are rarely granted and usually require the showing of exceptional circumstances. The Supreme Court said such circumstances do not exist in DNREC’s case.

Environmental officials have unsuccessfully sought to quash subpoenas from the plaintiffs for DNREC documents related to wastewater, sludge facilities and groundwater at Mountaire Farms’ plant in Millsboro, and nearby wells.

The plaintiffs also served subpoenas for depositions of five DNREC employees.

The information being sought includes documents gathered by DNREC in its investigation of Mountaire’s environmental violations and information from settlement discussions between DNREC and Mountaire in a federal lawsuit filed by DNREC.

Superior Court Judge Craig Karsnitz in April rejected arguments by state officials that the information being sought by attorneys for the Millsboro-area residents could be withheld under Delaware’s Freedom of Information Act as “investigatory files.” DNREC also argued that the information was subject to attorney-client privilege and was protected because it was part of settlement discussions, and that having to provide it would unduly burden the agency.

Karsnitz noted that DNREC has an obligation under Delaware law to provide the public with information that indicates when a facility has been inspected, what violations were detected, and any enforcement action that results from violations.

“A statutory obligation cannot be an undue burden,” the judge noted.

Karsnitz also was unpersuaded by arguments from DNREC and Mountaire that there would be an “apocalyptic effect” on settlement discussions in environmental cases if he allowed the plaintiffs access to information regarding their settlement negotiations.

Mountaire has been the subject of several lawsuits involving its handling of wastewater and sludge from poultry processing operations.

The company agreed in December to pay a $420,000 penalty and upgrade its wastewater system as part of a proposed consent decree with DNREC filed in federal court. The agreement is aimed at resolving spray irrigation and land application permit violations cited by DNREC in 2017 involving the Millsboro facility.

The plaintiffs in the state lawsuit against Mountaire also have intervened in the federal lawsuit and argue that the consent decree is not fair, reasonable or consistent with federal environmental laws. They are seeking permission from a federal judge to obtain information about the settlement negotiations between DNREC and Mountaire.

Meanwhile, Mountaire also has agreed to pay a $230,000 administrative penalty regarding violations at its Selbyville facility and other violations in Millsboro that are not related to the 2017 wastewater treatment system failure.

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