Oklahoma poultry lawsuit wraps up
February 24, 2010 by World Staff Writer
February 24, 2010 – Attorneys for the state of Oklahoma are urging a
federal judge to impose a moratorium on the application of poultry
litter in the Illinois River watershed.
February 24, 2010 – Attorneys for the state of Oklahoma are urging a federal judge to impose a moratorium on the application of poultry litter in the Illinois River watershed.
The request came Thursday during closing arguments in the final day of trial for the state’s pollution lawsuit against 11 poultry companies.
Robert Nance, an attorney for the state, urged U.S. District Judge Gregory Frizzell to impose a moratorium on the application of poultry litter as fertilizer in the watershed.
Nance suggested that the moratorium could be temporary and might be lifted after the court establishes sufficient controls.
Farmers in the area commonly use poultry litter, which contains poultry waste and has high concentrations of phosphorus, as fertilizer for crops.
But attorneys for the poultry companies opposed the moratorium, saying it isn’t necessary and would cause an economic hardship on the poultry and cattle industries.
Mark Hopson, an attorney for Tyson Foods Inc., quoted from earlier defense experts who testified that an injunction could be “cost prohibitive and cause “dramatic shifts in land use” in the watershed.
Hopson and other poultry company attorneys said their “growers” — contracted chicken farmers — own the litter and are largely complying with Oklahoma laws governing its use as a fertilizer.
If the state thinks its standards are too lenient, the state has the authority to increase the standards, Hopson said.
Addressing Frizzell, who is presiding over the nonjury trial, Hopson said the state would “rather have you take the political heat” associated with imposing the tougher standards on the use of poultry litter.
That way, Hopson said, if poultry litter is banned and algae still exists in the watershed 10 years later, state officials can’t be blamed.
Earlier in the day, Louis Bullock, an attorney for the state, said the Illinois River was once beautiful and cited historical references to that effect.
But the river has turned into “largely a green slimy mess” that is sometimes covered with invasive algae, Bullock said.
That assertion was disputed by an attorney for Simmons Foods Inc.
John Elrod, during his closing argument, said he built a house on the Illinois River 32 years ago and that, “contrary to what the state has said, I dispute that the water is injured.”
Fishing is good; no one is sick; and the water is in great shape, Elrod said.
He offered testimony from a defense expert who said an injunction banning the use of litter in the watershed would cause “catastrophic economic harm.”
But Bullock recounted statistics cited by experts for the state during 50 days of testimony that he said pointed to “overwhelming evidence” that poultry litter was a “significant cause” of the damage to the 1 million acre Illinois River watershed.
One state expert who testified during the trial and was cited by Bullock determined that 76 per cent of the phosphorus in the watershed had come from poultry waste.
An estimated 354,000 tons of poultry waste is generated each year in the watershed, and “it is clear poultry has played a major role in getting us to where we are today,” Bullock said.
The state, he argued, has shown that each of the defendants has generated “massive quantities” of poultry waste, which is commonly applied to land nearby and then runs off the fields when it rains.
Between 2000 and 2007, the defendants individually owned millions of birds in the watershed, he said.
Cal-Maine Foods Inc. owned the fewest birds during that time period — 4.8 million birds — while Tyson Foods was the largest producer, owning 703 million birds during that period, Bullock said.
Together, the defendants’ birds produced an estimated 8.7 million to 10 million pounds of phosphorus annually between 2001 and 2006, said David Page, another attorney for the state.
The closing arguments, as was the case with earlier portions of the trial, featured attorneys for both sides assailing the other’s scientific experts.
Page called opinions from defense witness John P. Connolly, who blamed wastewater-treatment plants for most of the phosphorus pollution in the watershed, “patently incredible” and “entirely out of the mainstream of accepted science.”
He asked why, if Connolly’s opinion regarding wastewater-treatment plants were true, phosphorus levels in the area’s waters didn’t decrease along with a 55 percent reduction in area treatment-plant discharges from the late 1990s to 2003.
“I guess the question for us today is what is the legacy we will have for our kids and grandkids” — a legacy of pollution or of cleaning up the watershed, Page said.
Should the requested moratorium be granted and then eventually lifted, state officials also asked Frizzell to restrict the land application of poultry waste in the Illinois River watershed to no more than 65 pounds per acre.
Nance said the 65 pounds per acre standard would be enough to grow crops and yet still protect the environment.
Nance suggested that a poultry litter application moratorium might be lifted once markets are established to handle its export out of the watershed.
But Hopson urged Frizzell to do nothing.
A ban on poultry litter use would harm farmers in the watershed, Hopson said, quoting trial testimony from one poultry grower who said he would have to cut two-thirds of his cattle herd if he couldn’t use litter to grow forage crops.
Hopson also said the existing system for marketing and transporting poultry waste “is working.”
His comment caused Frizzell to wince and counter that the suggestion that the current litter transportation system is working is an “overstatement.”
Later, Hopson said evidence of injury to the waters from land application of poultry litter is “virtually nonexistent.”
Attorneys for other poultry companies also challenged the state’s cases against their clients.
One attorney said the state is asking Frizzell to create a “parallel regulatory universe” of laws that neither Oklahoma nor Arkansas, where many of the poultry companies are based, could enforce.
Nance, meanwhile, said the state doesn’t have to prove its case one grower at a time, as the defendants claim.
“The defendants are basically making a plea for the status quo, and the status quo is the problem, not the solution,” Nance said. “Only action by the court can protect these waters.”
The court action should include requiring the poultry companies to move the litter out of the watershed, he said.
Frizzell showed an interest in the idea that poultry companies be required to establish a stable market that would export excess litter from the watershed. He asked attorneys for both sides to submit written briefs on such a market requirement.
The judge, following the conclusion of the arguments, thanked the attorneys for their work on the case.
“I’ll go through it all very closely,” said Frizzell, who did not indicate when he would issue a ruling.
The defendants in the lawsuit are Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production LLC., George’s Inc., George’s Farms Inc., Peterson Farms Inc. and Simmons Foods Inc.
The civil allegations are:
- Violation of state and federal public-nuisance laws
- Violation of trespass laws
- Violation of two state statutes governing pollution of waterways
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