(Updated) Lawsuit filed against Tyson over 2019 spills

Alabama Attorney General’s lawsuit adds to legal challenges for Tyson Foods; Tyson responds to latest filing

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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, 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 Wednesday:

“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.

Tyson responds

Tyson Foods on Thursday issued a response to the filing of the suit. Tyson Foods Senior Manager for Public Relations/Corporate Communications Worth Sparkman sent a statement to The Tribune which reads: 

“We’ve tried for many months to work with the state to resolve this matter, including an offer to initiate conservation and community projects including river access in the area of the accidental release. We are disappointed in the decision of the Alabama Attorney General to file suit. We’re focused on the health and safety of our employees and are doing all we can to continue to feed America during these challenging times. We look forward to presenting our side of the story.”

Sparkman also forwarded an open letter to the community written by River Valley Ingredients Senior Vice President Shane Sparks and published in The Tribune last August:

Residents of Hanceville and the surrounding areas, 

On June 6, our River Valley Ingredients facility experienced an accidental release of wastewater due to a mechanical failure in temporary piping installed by a contractor. Since that time, there has been a lot of information shared through both traditional and social media. A great deal happened quickly but not all facts were apparent. While we provided early comments to news media, I want to directly provide area residents with some additional information. 

First and most importantly, we understand that events like this are unacceptable. We strive to be good stewards of the environment and we take that obligation seriously. While this was an isolated event, I want you to know that we’ve taken measures to improve our operation at this facility. 

In August of 2018, Tyson Farms, a part of the Tyson Foods family of businesses, bought the Hanceville, Alabama facility. During the past year, we’ve worked hard to improve and upgrade the location. Tyson Foods has a high level of commitment to Hanceville and to all of Alabama. Under the Tyson banner, we look forward to continuing to execute on our corporate commitment to continuous improvement, environmental stewardship and sustainability. We are committed to making the facility better than we found it in August 2018. 

The facts of this event are that an estimated 220,000 gallons of partially treated wastewater was released from temporary piping we had a contractor install. Since it had not yet completed the treatment process, the water that reached the Mulberry Fork caused the oxygen levels to drop. Fish died as a result of the decrease in oxygen levels. We want residents to understand this was due to low levels of oxygen in the water and not because of the release of man-made chemicals. The oxygen levels in the water returned to normal within a short time of the incident and fish are starting to return. 

We continue to have discussions with the Alabama Department of Environmental Management, and Alabama Department of Conservation and Natural Resources about the incident and its impact. We are actively assessing conservation and community projects that we may undertake to further our efforts in the area of the release and in Alabama generally. 

We’ve also opened dialogue with property owners, elected officials, The Nature Conservancy, Black Warrior Riverkeeper, Friends of the Locust Fork River and various other groups. We recognize there are many of you concerned. We will remain engaged in the community and work hard to make this right.

Finally, I want to thank my friends and team members who live in the area and work at our Hanceville facility. I appreciate them for their long hours, hard work and dedication over the course of the last couple of months. With sustained commitment to our core values and working together, we’ll get through this and improve along the way.

Adding to existing legal troubles for Tyson

The AG’s case is the third legal filing in Alabama against Tyson related to the June 6, 2019 spill.

Dora woman sues over alleged E. Coli infection

On June 26, 2019, Attorney Bob Bryan filed suit in Walker County against Tyson, River Valley Ingredients and the Jasper Water Works and Sewer Board on behalf of Dora resident Kayla Mims, who was hospitalized at Princeton Medical Center in Birmingham for sepsis found to have been caused by E. Coli bacteria. The suit claimed that Mims ingested the bacteria in drinking water that was drawn from the Mulberry Fork/Sipsey River system after the spill.

The current status of the June 2019 suit could not be determined at the time of writing.

Multiple plaintiffs sue in Walker County

On July 19, 2019, the Sipsey Heritage Commission and Chandler Holdings, along with 40 individual property owners along the Mulberry and Sipsey Forks of the Black Warrior River, filed suit against Tyson Farms, Inc., River Valley Ingredients LLC, RVI Hanceville plant manager Jason Spann, American Proteins, Inc. and Hydraservice, Inc. 

The complaint was filed in Walker County by Edward Jackson of the Jasper-based law firm of Jackson, Fikes & Brakefield, and Judson Allen of Laird & Robertson, also based in Jasper, on behalf of two corporate entities and 40 individual property owners:

  • Sipsey Heritage Commission – An organization that describes itself as “dedicated to improving the health and well-being of our community by improving access to our natural resources.” It promotes the history, culture, and natural features of the region of the Sipsey and Mulberry Forks.  Martha Salomaa is the current President.
  • Chandler Holdings, LLC – A Jasper-based real estate development domestic corporation whose members include Hershel Chandler, Sr., Hershel Chandler, Jr. and Anna Chandler.  Bogner Chandler is the listed agent.
  • Individuals: Marnice Aaron, Sidney Aaron, Neal Ballenger, Ann Burke, Michael Cates, Joseph Christianson, Lisa Christianson, Robert Earl Clifton, Billy Joey Dill, Susan Donaldson, Ed Frazier, Norma Jane Green, Ricky Hall, John Lively, Linda Lively, Billy Parson, Chris Peed, Kevin Perkins, Roger Perkins, Jimmy Phillips, Michael D. Phillips, Regina Phillips, Iris Ramey, Robert Ramey, Fred Rutkowski, Sr., Rita Rutkowski, Kari Salomaa, Martha Salomaa, Betty Shed, Don Smith, Chiyako Starnes, Norman Starnes, Rex Starnes, Toby Stover, Paul Wigley, Kerri Wigley, Westin Wilborn, A.C. Williams, Mechelle Williams, Dennis Yglesias

 

According to the complaint, plaintiffs who live or own property on the river “fear to go outside, use the river, fish in the river, or let their animals use the river because of these spills. Some of these Plaintiffs use the river as a means for living and fear such way of life has been altered forever costing them money and happiness.

“The other category of Plaintiffs are those who are affected by the horrible smell of the River Valley Ingredients plant.  The smell is so regular and potent that it has affected these Plaintiff’s daily lives, affected their quiet use and enjoyment of their property, and cause them fear, discomfort, and embarrassment.”

The July 2019 complaint names five specific defendants:

  • Tyson Farms, Inc. 
  • River Valley Ingredients, LLC
  • American Proteins, Inc. (API) – API operated the Hanceville plant prior to its being purchased by Tyson/RVI, and was the operator at the time of the 2016 acid spill.
  • Jason Spann – The only individual named in the suit, general manager of the RVI Hanceville plant, who also served in that capacity during its API days.  The complaint called him “the individual in charge of the safe and proper operation of the discharge of sanitary wastewaters associated with the rendering operations of the plant,” and alleged, “Jason Spann and (up to 13 fictitious defendants in management positions) failed to act as the responsible and prudent person to remedy issues that have caused and are causing damages to the Plaintiffs and the Mulberry River and Black Warrior River after receiving adequate warning and notice of such issues.”
  • Hydraservice, Inc. – Listed in the complaint and its own website as both Hydraservice and Hydra Service, the company, founded by F.J. Doyle near Warrior in 1992, is alleged to be the contractor that installed the pump and equipment at the RVI plant, a failure of which led to the June 6 spill. According to the complaint, “Tyson Farms claims the June 6th discharge was caused by a coupling on a hose/pipe that came loose and was attached to a pump that was pumping sewage from one basin or lagoon into another and that a local contract pump company supplied and installed the pump, piping, and coupling. Upon information and belief Defendant, Hydraservice, is the company or contractor [which] provided and operated the pumps, pipes, hoses, and other equipment for this task of pumping raw sewage from one basin to another basin. From reports at the Alabama Department of Environmental Management (“ADEM”), the work to pump the sewage from the basin was not overseen for several hours and the coupling came loose during that time and was allowed to freely run out and into the Mulberry River for hours.”

 

The July 2019 complaint charged the defendants with:

  • Negligence – The complaint alleged that the defendants had a duty to exercise reasonable care in the operation of the plant and all equipment there, and failed to do so to the degree of violating the law.
  • Nuisance – The complaint alleged that the June 6 and previous spills, along with the foul odor that regularly comes from the plant has interfered with the ability of river residents to use and enjoy their property, has lowered property values and caused the residents undue stress.
  • Wanton Conduct – The complaint alleged that the defendants were aware of ongoing issues like the smell, and of the dangers of spills, and deliberately continued to run the plant in a manner likely to result in such problems.  According to the complaint, the defendants “continue to wantonly cause or allow harmful substances to be deposited into the Mulberry River and they continue to wantonly cause and allow the offensive odor to permeate continuously onto and around the Plaintiffs’ property with actual knowledge.”

 

The complaint also specifically charged that:

  • 175,000 fish were reported killed, but the actual number cannot be known; and “The Alabama Department of Conservation and Natural Resources concluded that the Mulberry River has been damaged for five years as a result of the June 6th discharge.”
  • “It is upon information and belief that a representative of Tyson issued a statement less than ten days after the June 6th discharge that the river was safe for recreation,” and that “Tyson based this statement only upon the dissolved oxygen levels of the river without testing for e-coli or fecal coliform.”
  • The spill led to the cancellation of a June 22, 2019 kayak race sponsored by the Sipsey Heritage Commission, resulting in a loss of money to the commission and likely decreased participation in future events.
  • “Other sewage spills of Tyson Farms and American Proteins . . . were reportedly from lack of adequate maintenance and/or supervision, lack of the proper oversight, lack of proper operation, and lack of proper advice,” and that the ongoing smell at the plant has the same origin.

 

The Plaintiffs in the July 2019 suit are seeking compensation for issues including:

  • Loss of property value
  • Deprivation of use and enjoyment of their property
  • “Fear, worry, stress, anxiety and mental anguish over the past damage and continuing future damage to their property,” and the same stress over past and future health concerns
  • The loss of funds to the Sipsey Heritage Commission
  • Attorney fees and other costs related to the case
  • “Punitive damages in such amount as a jury deems necessary to punish defendants, including the fictitiously named defendants, for such reprehensible conduct and to deter defendants and others from engaging in such reprehensible conduct in the future.” 
  • Remediation of the river itself

 

The multi-plaintiff case is ongoing.

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W.C. Mann

craig@cullmantribune.com