Breaking News: AL attorney general files suit against Tyson over 2 2019 Mulberry Fork spills

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The June 6, 2019 spill occurred at the Tyson/River Valley Ingredients rendering plant near Hanceville. (Photo courtesy of Worth Sparkman/Tyson)

JASPER, Ala. – Alabama Attorney General Steve Marshall on Wednesday filed a lawsuit in the Walker County Circuit Court on behalf of the State, Alabama Department of Environmental Management (ADEM) and Department of Conservation and Natural Resources (DCNR) against Tyson Foods over two spills that occurred 11 days apart at the Tyson/River Valley Ingredients/American Proteins plant near Hanceville, on May 26 and June 6, 2019. The case was filed in Walker County, according to court documents, “because it is one of the counties adversely affected by pollution from Defendant’s unlawful discharges.”

The AG’s Office issued this statement:

“On June 6, a pipe failure at the Tyson Plant in Hanceville, Alabama, caused the release of over 200,000 gallons of insufficiently-treated wastewater into the Mulberry Fork of the Black Warrior River.  Since that time, the Attorney General’s Office has undertaken extensive preparation for litigation, and today, the Attorney General filed suit against Tyson. The Attorney General’s mission in this matter is simple—to see the State made whole for the damage done to our environment and to see the affected communities adequately compensated for their unique and devastating losses.”

According to the document filed in Jasper:

“This is a civil action against Tyson for violations of the Alabama Water Pollution Control Act (“AWPCA”) and the Alabama Environmental Management Act (“AEMA”) and certain regulations promulgated under each statute, as a result of violations of its National Pollutant Discharge Elimination System Permit, and unpermitted discharges of wastewater and/or partially treated wastewater from Tyson’s processing facility into waters of the State. In addition, the Plaintiffs allege herein that Tyson engaged in negligent and wanton conduct by causing a public nuisance, committing a trespass to State land, and by committing a trespass to chattel, resulting in the death of various species of fish and other wildlife. Plaintiffs seek declaratory and injunctive relief as well as the recovery of civil penalties and compensatory and punitive damages from Tyson for alleged violations of the law of the State of Alabama.”

The lawsuit alleges that “unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into waters of the State caused depressed levels of dissolved oxygen and elevated levels of pathogens. These discharges resulted in the killing of various species of fish and other wildlife downstream of the Facility. Defendant’s aforesaid discharges further interfered with and damaged the general public’s ability to use and enjoy waters of the State.”

and that

“DMRs (Discharge Monitoring Reports) submitted to ADEM by Tyson indicate that it failed to properly monitor and discharged and continues to discharge pollutants in violation of the limits imposed by Part I.A. of the NPDES (National Pollutant Discharge Elimination System) Permit.”

Specific charges

The lawsuit charges Tyson with:

  • Violations of the Alabama Water Pollution Control Act: The AG declared that Tyson’s unpermitted discharges “contributed to violations of instream water quality for pH,” “resulted in instream water quality criteria violations and killed fish,” “interfered with a designated water use classification” and “resulted in new or increased pollution into waters of the State, as set out above, and which caused or contributed to exceedances of the minimum standards, constitute violations of (ADEM regulations).”

  • Public Nuisance: the spill “interfered with and damaged the general public’s ability to use and enjoy waters of the State.”

  • Trespass to Land: “Defendant interfered with Plaintiff’s ownership and exclusive possession of the Mulberry Fork river bottom and beds by allowing or causing the unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into a water of the State.”

  • Trespass to Chattel: “Defendant interfered and caused damage to the ownership and exclusive possession of the State’s property by allowing or causing unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into waters of the State, causing the death of fish and other wildlife owned by the State.”

  • Negligence: “Defendant negligently allowed or caused unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into a UT to Mulberry Fork and Mulberry Fork, waters of the State” and “breached its duty to act reasonably and use care by failing to properly handle wastewater and/or partially treated wastewater, thereby allowing or causing the unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into waters of the State.”

  • Wantonness: “Defendant wantonly allowed or caused unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility” and “breached its duty to act reasonably and use care by failing to properly handle wastewater and/or partially treated wastewater, thereby allowing or causing unpermitted discharges of wastewater and/or partially treated wastewater from Defendant’s Facility into waters of the State.”

 

The lawsuit lays out a timeline of events related to two spills from the plant:

  • On Sunday, May 26, 2019, a clean-out pipe transferring wastewater to the activated sludge system failed at Tyson’s Facility, resulting in the unpermitted discharge of approximately 2800 gallons of wastewater, which flowed into a UT to Mulberry Fork, locally known as Dave Young Branch, and into Mulberry Fork, waters of the State. 

  • On Thursday, June 6, 2019, a section of pipe transferring partially treated wastewater between Tyson lagoons failed, resulting in the unpermitted discharge of approximately 220,000 gallons of partially treated wastewater to a UT to Mulberry Fork (Dave Young Branch), and eventually to Mulberry Fork, both of which are waters of the State. 

  • ADEM conducted an emergency response investigation based on Tyson’s reported spill from June 6, 2019, to June 13, 2019. During the investigation, ADEM’s monitoring results indicated that instream Dissolved Oxygen (“DO”) and E. coli levels did not comply with water quality criteria. ADEM also observed dead fish that were attributed to low instream DO. In addition, DCNR observed dead fish that were attributed to the low instream DO.

  • The Jasper Waterworks & Sewer Board (“JWWSB”) drinking water plant is approximately thirty miles downstream of the Facility. JWWSB contacted ADEM on June 11, 2019 and indicated that its drinking water plant had been impacted by Tyson’s spill.

  • On September 16, 2019, Tyson reported instream sample results it collected between June 6, 2019, and June 24, 2019, to ADEM, which indicated that Tyson’s discharges caused or contributed to a violation of instream water quality standards for pH. 

 

The suit asks for punitive damages in an unspecified amount.

This is a developing story.

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W.C. Mann

craig@cullmantribune.com