Tyson now facing 5 local, state, federal actions over Hanceville plant spill

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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)

HANCEVILLE, Ala. – Almost a year has passed since a June 6, 2019 spill at the Tyson Farms/River Valley Ingredients rendering plant near Hanceville triggered a large fish kill on the Mulberry Fork that extended down to the Sipsey River in Walker County. The time has not passed quietly for the poultry giant, though; a lawsuit filed by the Alabama Attorney General’s (AG) Office on behalf of the Alabama Department of Environmental Management (ADEM) and Department of Conservation and Natural Resources (DCNR) last week is the fifth filed since last June.

Kayla Mims vs. Tyson and others

On June 22, 2019, Robert Bryan of Nelson, Bryan and Cross and Dennis Goldasich of Goldasich, Vick and Fulk filed suit on behalf of Dora resident Kayla Mims against Tyson Farms, Inc., Tyson Cullman office manager Ronald Boatright, River Valley Ingredients and Jasper Water Works and Sewer Board. On June 14, 2019 Mims was hospitalized for sepsis due to “a severe bacterial infection later confirmed to be caused by E. coli. High levels of E. coli are confirmed to have been present in the area of the Mulberry fork subsequent to the wastewater spill at the River Valley Ingredients location.”

 The suit charged the defendants with: 

  • Negligence/Wantonness – “The Defendants negligently, purposefully, knowingly, willfully, and/or wantonly breached their duty of care in failing to adequately install, maintain, and/or inspect the failed hose or pipe. The Defendants knew or should have known that failure to act with requisite due care in implementing an adequate support structure would compromise the water in the area in and around the Mulberry Fork and its uses, including the water’s usage in homes located within Walker County. As a direct and proximate result of Defendants’ conduct, Plaintiff was caused to suffer the injuries and damages set out herein above.” 
  • Negligent Hiring, Supervision, Training and Retention

 

The suit asks for unspecified compensation.

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 complaint names Tyson Farms, Inc., River Valley Ingredients, LLC, American Proteins, Inc. (who operated the Hanceville plant prior to its being purchased by Tyson/RVI), RVI Hanceville plant manager Jason Spann and Hydraservice, Inc. (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).  

The complaint charged the defendants with:

  • Negligence 
  • Nuisance 
  • Wanton Conduct 

 

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 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

 

Federal class action cases

When The Tribune reached out to the law firm of Nelson Bryan & Jones to find out the status of the Kayla Mims case, the paper was informed that two previously unknown class action cases were filed against Tyson, Hydraservice, Spann and the Jasper Water Work and Sewer Board by that firm and others in the Northern District of Alabama U.S. Federal District Court on July 24, 2019:

  • 5:2019cv01179 – entitled “Russell et al v. Tyson Farms, Inc. et al” 
  • 5:2019cv01180 – entitled “Ashley et al v. Tyson Farms, Inc. et al”

 

The two federal class actions, filed by the same attorneys on the same day and dealing with the same issue, were consolidated into a single proceeding by the federal court. The complaint for case 01180 claims that the suit seeks:

“to recover damages suffered by Plaintiffs and the Class Members as a result of the contamination of the Mulberry Fork segment of the Warrior River, and the subsequent transmission of unsafe and/or tainted water to residents, property owners, and/or business owners in the State of Alabama including, but not limited to, residents, property owners, and/or business owners in Walker County, Alabama and Cullman County, Alabama.

“The above-referenced water contamination by Defendants Tyson, Spann, and HydraService, as well as Defendant JWWSB’s failure to properly anticipate, plan for, contain, remediate, respond to, and/or warn Plaintiffs about the same, have caused significant damage and will continue to cause significant damage to the value of the plaintiffs’ and Class Members’ real and/or personal property, and to negatively affect Plaintiffs’ and Class Members’ earning capacity, business income, use of natural resources, and/or general/normal use of their real property, personal property, and/or business(es).”

The consolidated case has been assigned to Judge Liles C. Burke.

Plaintiffs in 01179

  • Tiffany Ashley
  • Kathy Russell
  • Krystal Sasko

 

According to the 01179 complaint, each plaintiff “has been exposed to contaminated water, raw sewage, effluent materials, toxins, bacteria, contaminants and/or other dangerous and unsafe materials, and has suffered personal injuries and/or damages including, but not limited to, pain, suffering, mental anguish, emotional distress, monetary damages, and/or humiliation.”

Plaintiffs in 01180

  • Tiffany Ashley, same as above, but listed as property owner at 86 Chappell Fish Camp Rd., Parrish, Ala. According to the complaint, “she has suffered injuries and/or damages including, but not limited to, pain, suffering, mental anguish, fear, humiliation, interference with the quiet enjoyment and use of her property, significant damage to the value of her real and/or personal property, economic damages, and/or a negative effect on use of natural resources, and/or general/normal use of her real property and/or personal property.”
  • Charles Richard Corry, owner of The Bullpen Steakhouse at 11 School St., Oakman, Ala. According to the complaint, “he has suffered injuries and/or damages including, but not limited to, pain, suffering, mental anguish, fear, humiliation, interference with the quiet enjoyment and use of his property, significant damage to the value of his real and/or personal property, economic damages, damages to his business, a negative effect on use of natural resources, and/or general/normal use of his real property, personal property, and/or business(es).”
  • Bullheaded, LLC dba The Bullpen Steakhouse. According to the complaint, the business “suffered loss of business, loss of income, and/or economic damages.”

Plaintiffs’ attorneys in both cases

  • Dennis E. Goldasich, Jr and Justin C. Owen of Goldasich & Associates, LLC
  • Joshua M. Vick of Goldasich, Vick And Fulk, and Robert O. Bryan of Nelson Bryan & Jones

Defendants in both cases

  • Hydraservice, Inc., represented by attorneys of Burr & Forman LLP
  • Jasper Water Works and Sewer Board, Inc., represented by attorneys of Smithamundsen, LLC and Burgess Roberts, LLC
  • James Spann, represented by attorneys of Barze, Taylor, Noles, Lowther, LLC
  • Tyson Farms, Inc., represented by attorneys of Brantley Arant Boult Cummings, LLP

 

In the 01180 complaint, the plaintiffs are said to be representative of a class of people impacted by the spill that is “so numerous that joinder of all members is impractical,” which includes:

“All Alabama residents who own or lease residential or commercial property and/or personal property that has been or will in the future be damaged as a result of the June 6, 2019 wastewater spill/contamination and the subsequent containment, handling, and/or remediation of said spill/contamination, and/or all Alabama residents who have experienced a negative affect on his/her/their use of natural resources and/or the general/normal use of their real property and/or personal property as a result of the June 6, 2019 wastewater spill/contamination and the subsequent containment, handling, and/or remediation of said spill/contamination.

“This class further includes all Alabama residents who have suffered or will in the future suffer any legally cognizable business and/or economic losses and/or damages as a result of the June 6, 2019 wastewater spill/contamination and the subsequent containment, handling, and/or remediation of said spill/contamination.”

The complaints charge the defendants with:

  • Negligence and/or Wantonness
  • Strict Liability
  • Trespass
  • Nuisance 

 

Each complaint seeks a minimum of $5 million in compensation. The cases are ongoing.

State Attorney General files suit

Alabama Attorney General Steve Marshall on Apr. 29 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), issuing 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 complaint 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.”

The lawsuit charges Tyson with:

  • Violations of the Alabama Water Pollution Control Act
  • Public Nuisance
  • Trespass to Land
  • Trespass to Chattel
  • Negligence
  • Wantonness

 

Tyson responds

After the state lawsuit was filed last week, Tyson sent a statement to The Tribune, saying, “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.”

Worth Sparkman, external communications, provided the following statement from Tyson Wednesday afternoon:Tyson aims to be a strong partner and responsible member of the communities we serve and in which our team members live and work. We take our obligations to our neighbors seriously and, since acquiring the Hanceville facility in late 2018, we have made significant investments to help bring it up to Tyson’s standards. We will respond to the legal claims in the appropriate forum.”

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W.C. Mann

craig@cullmantribune.com