(Delmarvanow.com) -- Virginia’s State Water Control Board will hold a public hearing in Richmond on Wednesday, July 19, about pollution coming from Tyson Foods Inc.’s Temperanceville plant.
The hearing was scheduled after the Virginia Eastern Shorekeeper organization expressed concern to the Virginia Department of Environmental Quality about a consent order proposed for the plant, covering multiple incidents within two years of the facility exceeding permitted pollutant levels in treated stormwater and wastewater discharged into an unnamed tributary that flows into Sandy Bottom Branch and then to Pocomoke Sound.
"We’ve worked to resolve this matter to the satisfaction of the State Water Control Board and are currently having an engineering assessment performed," Tyson Foods spokesman Worth Sparkman said.
"Like most companies, we believe protecting the environment and conserving natural resources is essential for maintaining clean air, water and land in our communities and the world," he said, adding, "We look forward to the hearing next week so we can better understand public opinion."
The original public notice about the consent order was published Christmas Eve 2016, a time when many people's minds are preoccupied with the holiday.
Still, someone saw the notice and alerted Jay Ford, Virginia Eastern Shorekeeper executive director.
Virginia Eastern Shorekeeper is an environmental group dedicated to protecting the waters of the Chesapeake Bay and Atlantic Ocean around Virginia's Eastern Shore.
“We went to them and said, ‘What on Earth is this? We can’t find any documentation,” said Ford.
Another public notice was published later.
Shorekeeper obtained documents about the case through a Freedom of Information Act request.
Those documents include the consent order, an action plan Tyson Foods was required to produce to address overages in pollutant levels, and a worksheet showing in which months and for which pollutants the company exceeded discharge limits.
“In the summary on here, it draws a pretty straight line between the fecal coliform impairment … back to the facility,” Ford said of one document, the Enforcement Recommendation and Plan, dated Aug. 25, 2016.
The two poultry processing plants on Virginia’s Eastern Shore, operated by Tyson Foods and Perdue Farms, together “produce about 94 percent of our toxic releases” on the Virginia Eastern Shore, Ford said.
A penalty that's too low?
The original consent order included provision for a penalty of $16,150 — an amount Ford said is too low.
“We asked some attorneys to take a look at it and a lot of folks from the community, and we started noticing there were some inconsistencies between the consent order, the violations that had been issued and what the agreed-to fine was,” he said.
The company’s compliance action plan in response to the consent order “was all of a half page,” Ford said.
The plan submitted by Tyson Foods in December 2016 said after consultation with a design engineer and corporate wastewater specialists, it was determined the overages “were caused by an excess of solids in the wastewater system.”
“Tyson is committed to environmental compliance and will ensure that this Compliance Action Plan is implemented and obtains the desired results,” it stated.
Tyson began removing solids from an anaerobic lagoon in January 2016, according to the plan, which stated the next phase, slated to begin in December 2016, was to remove more materials from the lagoon, store solids on site and land apply them under an existing permit in spring 2017.
“An aggressive water conservation program has been implemented to further reduce loading to the system,” the plan stated, noting a water conservation team holds monthly meetings and water usage is tracked daily at the plant.
The plant in 2016 used 10 percent less water per pound of finished product, the plan said.
Shorekeeper objected to the fact “there was no ongoing maintenance plan included,” Ford said.
Additionally, the plan Tyson submitted included work already completed in January 2016, while additional violations were cited in August 2016.
“There was a pattern that had developed with violations, and in their compliance action plan they didn’t make it clear that they were going to be monitoring this more regularly, that we might see more regular dredging of the ponds in order to avoid these pollution overflows,” Ford said, adding that maintenance of the ponds should be tied to the plant’s production.
Additionally, the Shorekeeper said the amount of the civil penalty is not a deterrent.
“Arguments that these penalties are a deterrent are highly dubious and should be reviewed before the State Water Control Board,” Ford said in a letter to Jennifer Coleman, DEQ Regional Enforcement Specialist.
The cost to the company to ensure compliance with its permit “simply exceeds the deterrence value of the penalties. Thus, a pattern of pollution, followed by a slap on the wrist has developed and will likely continue to do so under the proposed order,” he wrote.
Coleman, in a reply letter dated May 4, 2017, said the Department of Environmental Quality after consideration of comments about the proposed consent order had raised the penalty to $26,160 and was working with Tyson on “a more comprehensive” action plan.
"No financial incentive"
Tyson on March 8 submitted a revised plan, including a process to address excess solids in the lagoon on a continuous basis. The revised plan is more than two pages long.
It cost Tyson $800,000 to remove solids from the lagoon and for subsequent land application in action that began in January 2016, according to the revised plan.
Tyson estimated a budget of $1.8 million for a similar project beginning January 2017.
“In our read of this, it makes it extremely clear why there’s no financial incentive” to comply with discharge limits, compared to paying a much smaller civil penalty, Ford said.
Shorekeeper successfully pushed for a hearing before the State Water Control Board on the Tyson case.
“We clearly want them to succeed; we just want them to do their job cleanly,” Ford said, adding that Shorekeeper “would love to work with them on finding ways they could work with the community to improve water quality.”
The larger issue he would like the State Water Control Board to consider is whether government-issued civil penalties in such cases serve as deterrents to future pollution.
A policy change a few years ago means violations where penalties do not exceed $40,000 typically are not required to have a hearing, Ford said.
“They have pushed all of this to the agency level,” he said.
Citizens for a Better Eastern Shore, an advocacy organization instrumental in the creation of Virginia Eastern Shorekeeper, in a July 10 email called for Eastern Shore residents, “especially those concerned about the impacts of poultry on the Shore, to attend the hearing and speak during the public comment period.”
Ford will speak at the hearing in Richmond and hopes to bring supporters with him; CBES representatives will be there as well, the email said.
The incidents addressed by the consent order involved overflow from a lagoon that exceeded discharge limits for ammonia, suspended solids, E. Coli and fecal coliform, according to CBES.
“This whole thing has been very eye-opening about how these things are handled, these consent orders,” Ford said.