Tulsa World: Poultry litter trial on way

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Poultry litter trial on way
The state's federal suit is to start Thursday.

MAY APPEAR
Drew Edmondson: The state's attorney general, who filed the suit, is expected to make the state's opening argument.

By CURTIS KILLMAN World Staff Writer
Published: 9/21/2009 2:23 AM
Last Modified: 9/21/2009 3:34 AM

More than four years after he declared that "chicken is the problem," Oklahoma Attorney General Drew Edmondson's federal lawsuit seeking to clean up the Illinois River watershed is heading for a trial this week.

Edmondson, who has made few courtroom appearances in the case, is expected to give the state's opening statement Thursday in the trial, which will be heard by U.S. District Judge Gregory Frizzell.

At issue is whether poultry companies that have chickens and turkeys in the Illinois River watershed are legally responsible for any pollution alleged to have resulted from the use of poultry "litter" as a fertilizer.

Litter is a poultry industry term used to describe the combination of poultry excrement and the birds' bedding material, which is often rice hulls or wood shavings.

The state's suit charges that the overuse of poultry litter has contributed to the degradation of the Illinois River and other lakes and streams in the 1 million-acre watershed in eastern Oklahoma and western Arkansas.

It also claims that bacteria in the litter pose a hazard to human health.

The poultry companies have countered that litter is a safe and beneficial plant fertilizer.

Tyson Foods Inc. has the largest presence in the watershed, with about 40 farms in Oklahoma.

State officials originally claimed that the poultry companies committed eight types of violations in the case.

Only six claims remain after a judge ruled that the Cherokee Nation should have been included as a plaintiff in the lawsuit.

The state is seeking administrative penalties and unspecified injunctive relief.

Although the watershed is part of two states, the suit will be limited to conduct and alleged violations in Oklahoma.

The trial will feature what has been described as testimony from a "bevy of experts."

The state is expected to present expert witnesses who will say that 3 percent to 5 percent of all land-applied poultry litter is going to run off the property, in violation of state law.

The poultry runoff has harmed both the environment and human population, state officials claim.

Poultry company officials have been quick to say that the state has no proof of even one person becoming ill as a result of poultry litter application.

But Frizzell said during a pretrial hearing last week that under the law, the state doesn't have to show evidence that anyone has become sick.

"Causing pollution doesn't necessarily mean you had a run on the hospitals that you can directly prove," he said.

Poultry companies, meanwhile, are expected also to contend that contractors who raise poultry comply with all state laws.

A Tyson spokesman, Gary Mickelson, said: "The state of Oklahoma is essentially at war with itself in this lawsuit. The Attorney General's Office claims pollution by the poultry industry, while the Oklahoma Department of Agriculture says poultry farmers and others who use poultry litter as fertilizer are abiding by the law.

"Despite spending more than $25 million on outside experts over the past several years, the attorney general has failed to come forward with any evidence poultry producers are in violation of state regulations. In fact, the state of Oklahoma continues to authorize the land application of litter as a fertilizer."

State officials deny the claims of infighting.

Compliance with an Animal Waste Management Plan, a state requirement for poultry grower houses, doesn't necessarily mean that the grower is in compliance with all state pollution laws, Assistant Attorney General Kelly Foster said during a pretrial hearing last week.

The judge appeared ready last week to take on the entire case by himself after the state dropped its request for a jury trial on some allegations.

"This is a court of law and we're getting to the truth here," he said. "And finally we're going to."

TIMELINE

Sept 2004 Poultry companies submit plan to reduce chicken litter application in Oklahoma river watersheds. Oklahoma Attorney General Drew Edmondson calls plan "lacking."

June 2005 Edmondson files a federal lawsuit against 14 poultry companies, accusing them of polluting the Illinois River watershed with chicken litter.

March 2006 State wins request to obtain soil and water samples on private poultry farms.

Sept 2006 Poultry industry pulls campaign ads critical of Edmondson before general election.

Nov. 2007 Citing data obtained through water and soil samples, state seeks preliminary injunction banning the use of poultry litter in the Illinois River watershed.

Sept. 2008 Judge rejects state's request for a preliminary injunction to prevent the land application of poultry waste.

October 2008 Poultry industry seeks to have case dismissed because Cherokee Nation has water rights in the watershed.

July 2009 Judge rules that state can't seek millions in damages because it failed to properly include the Cherokee Nation, which claims water rights in the watershed.

Sept 24 Trial scheduled to start in federal court.

Defendants

Eleven companies remain defendants in a lawsuit that originally included 14 companies. They 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.

At issue

The civil allegations are:

Violation of the federal Solid Waste Disposal Act.

Violation of state public nuisance law.

Violation of federal public nuisance law.

Violation of trespass laws.

Violation of two state statutes governing pollution of waterways.

Tyson alone also faces a claim it violated the oklahoma registered Poultry Feeding operations Act.

Curtis Killman 581-8471
curtis.killman@tulsaworld.com By CURTIS KILLMAN World Staff Writer

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	Report Comment Eagle 4, Tulsa (9/21/2009 7:01:12 AM) We're all eager to see how Cowboy Drew does after Judge Frizzell took away his horse, his rope, his guns and his sidekick!
	Report Comment Ed_C_in_OK, Tahlequah (9/21/2009 10:24:15 AM) I find it disheartening that a Judge ruled that the state can't seek millions in damages because it failed to properly include the Cherokee Nation, which claims water rights in the watershed, especially when there is a current discrepancy if the Cherokee Nation of Oklahoma,(CNO) is the historic Cherokee Nation, , which would have jurisdiction, according to Secretary of Indian Affairs Larry EchoHawk. Further the very reason the CNO did not intervene timely was because its own indiscretions & gross EPA violations at the Cherry Tree Landfill in Adair County, including raw landfill sewage running directly into Little Lee Creek, a scenic river & a tributary to the Ft. Smith, AR drinking water supply, would be investigated & prosecuted.
	Report Comment WhoseLeft, Tulsa (9/21/2009 12:50:32 PM) Many people fail to realize that the litter includes hormones--especially estrogen and antibiotics. We are not talking about a bit a litter spread on the fields, we are talking about tons and tons of poultry litter and those chemicals that make chickens meaty. Thirtsty?
	Report Comment What the ?, OK (9/21/2009 1:33:33 PM) E C and Ed are kin. Same thing...over and over and over. (Also E C, too long of sentences. WAAYYY too many commas.)
	Report Comment Saunders, (9/21/2009 1:39:34 PM) Hormones ARE NOT used for poultry production. This is a myth. Some companies have used antibiotics to keep birds healthy and safe but again - hormones ARE NOT used in poultry.
	Report Comment my view, Sand Springs (9/21/2009 1:40:29 PM) I see the grammar police are up and at em. It's my hope that we win this suit.
	Report Comment What the ?, OK (9/21/2009 4:17:22 PM) I hope we win this suite, also.
	Report Comment What the ?, OK (9/21/2009 4:17:40 PM) Just a joke, my view.
	Report Comment Twilight in Paris, near the water in SE OK (9/21/2009 4:20:53 PM) Has anyone checked to see if the Beef Industry is funding Drew Edmonson....kidding! I hope Drew wins the case, it is GROSS to think that bird excrement and nesting materiel get thrown in the river......eww!!! I hope it doesn't cause the Chicken Industry to pull out of Oklahoma. Can't we all just get along?
	Report Comment IrishQuaker, Tulsa (9/21/2009 4:26:52 PM) Twilight, the poultry industry that is polluting our watersheds, is in ARKANSAS. The FDA approves six hormones for food production: estradiol, progesterone, testosterone, zeranol, trenbolone acetate and melengeterol. Estradiol and progesterone are female sex hormones. However, the hormones are not approved for poultry or pork--because there is no evidence that hormones fatten those animals. The poultry industry did use DES, a hormone that was banned in 1970 because it was shown to cause cancer. I am more worried about ecoli.
	Report Comment Ed 8 R, Non (9/21/2009 5:45:39 PM) "Despite spending more than $25 million on outside experts" Let's see, 25 million on just experts, so how much has been spent on Lawyers? I figure 25 million is equal to about 750 jobs. If 750 Cherokees were employed to process chicken liter and bag it up to sell across the country at Walmart what would happen then? Maybe a whole new profitable industry would clean up the river, develop the economy and help make Stilwell Oklahoma a great place to live.
	Report Comment Thunder196, Tulsa (9/21/2009 6:40:57 PM) Like I said before, I sure hope we win this. My uncle had a chicken farm, and I know first hand what all that chicken waste does to the land. Then it runs into our water. Ugh!
	Report Comment ChitKicker, Tahlequah (9/22/2009 8:26:22 AM) I think the problem in the Illinois River comes from all the city people that flock to it every summer. They put more "litter" in the water than any chicken farm in the country. They leave their trash laying and floating around for the locals to pick up because once they pack up camp its not their problem anymore. You can drive over Combs bridge in the late fall or early winter and see the bottom of the river.
	Report Comment NE Oklahoma Girl, NE Oklahoma (9/22/2009 9:19:17 AM) "I hope Drew wins the case, it is GROSS to think that bird excrement and nesting materiel get thrown in the river" Whoever says the media doesn't convince people we back up to the river and dump litter is wrong. Here's my proof. Sorry Twilight to use you, but I needed to make a point. A portion of the litter, when overapplied or applied during large rains, can runoff into the river. Most try to keep away from the creek when spreading to keep from causing issues.

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