DOVER, Del. (AP) - A judge has rejected an effort by state environmental regulators to dodge subpoenas in a lawsuit involving wastewater violations by a southern Delaware poultry processor.
The judge on Tuesday rejected arguments by the Department of Natural Resources and Environmental Control that information being sought could be withheld under Delaware’s Freedom of Information Act as “investigatory files.” DNREC also had 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.
“A statutory obligation cannot be an undue burden,” said Superior Court Judge Craig Karsnitz.
The subpoenas were issued against DNREC and five DNREC employee by lawyers representing Millsboro-area residents in a lawsuit against Mountaire Farms.
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.
In rejecting DNREC’s FOIA argument, Karsnitz noted both a 2013 court ruling involving Delaware’s transportation department, and DNREC’S 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.
“The legislature has mandated that DNREC provide comprehensive information to the public about its work, allegations of violation of environmental law, and enforcement actions,” Karsnitz wrote. “Plaintiffs here claim they were injured by violations of environmental law.
He said it was the department’s specific statutory responsibility to provide the requested information to the plaintiffs.
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.
“While I agree it may have some negative effect, the disaster predicted is not imminent in my view,” Karsnitz wrote. He added that there was nothing in Delaware’s environmental code to suggest that settlement discussions are protected from disclosure.
Karsnitz said he did not have enough information to analyzed DNREC’s attorney-client privilege claims. He ordered DNREC to confer with other parties to discuss any specific privilege issues.
A spokesman for DNREC said Wednesday that the agency had no comment on the judge’s ruling.
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 Mountaire’s Millsboro facility.
The company also 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.
The federal case remains on hold while attorneys try to resolve objections to the proposed consent decree by the Millsboro-area plaintiffs, who were allowed to intervene in the federal case while pursuing their own claims in state court.
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