2/19/10

By Ed Brocksmith

Attorneys for Oklahoma and for the poultry companies accused of polluting the Illinois River ended their wrangling Thursday, making final arguments and transferring the trial’s burden and perhaps the future of the river squarely to the shoulders of U.S. District Court Judge Gregory Frizzell. But before the trail ended, the judge threw out a solution of his own, suggesting that the poultry industry step forward and protect the water by creating a market for the waste its birds produce.

In seven hours of argument and rehash of highly scientific evidence, lawyers said it was their expert witnesses that are correct and that the opposing side’s pollution models were worthless. Much of the debate was over how good a job Oklahoma has or has not done in protecting its water quality and whether it had succumbed to political pressure from the farm lobby.

“You can’t fight the farm lobby,” one member of the defense team quoted State’s witness Ed Fite as saying. Fite is the administrator of the Oklahoma Scenic Rivers Commission.

Tyson Foods attorney Mark Hopson said Oklahoma has had 12 years to strengthen its rules on poultry waste but hasn’t.

“The state can ban the application of poultry litter but not one agency has lifted a finger to get this done. If elected and appointed officials don’t write these regulations, the state legislature has left them an out. It’s not that they are not smart enough or care enough, I think they want you to take the heat 10 years down the road when algae is still a problem and Tenkiller Lake is still eutrophic,” Hopson said to Judge Frizzell.

“The poultry companies want a safe harbor,” said State’s attorney Robert Nance, countering defense claims that Oklahoma regulators had ample opportunity to adopt strong rules covering application of poultry waste on fields in the watershed.

“Defendants try to twist the law to lay blame on regulators. They want the same safe harbor they think their growers have,” he said referring to poultry farm management plans approved by Oklahoma. The poultry companies contend they are not polluting the watershed because their growers are following the state-issued farm plans.

Judge Frizzell noted that the National Resource Conservation Service soil test phosphorus index is 300 lbs. per acre and Oklahoma is asking for an index of 65 lbs. per acre.

“Frankly, is the agriculture lobby wrong here?” Frizzell asked. “Yes,” Nance replied. “You don’t have the folks out there enforcing it,” Frizzell suggested in reference to poultry farm management plan inspections. “Right your honor, just two persons,” Nance responded.

In an apparent surprise to both sides, Judge Frizzell suggested that he might be open to a plan whereby the poultry companies would manage poultry waste by creating a market for it outside the watershed.

“A supplemental finding is possible to the extent that the state allows application (of poultry litter) up to a certain amount,” Frizzell said. “That could remain but not an amount greater than can be applied. Integrators would be required to provide a market, buy it and transport it out of the state,” he suggested. Tyson’s Hopson suggested that such a system is working now but Frizzell said that he was not sure it was.

Oklahoma asked Judge Frizzell to name a Special Master to oversee the activities of poultry companies in the watershed, to implement a soil phosphorus index of 65 lbs. per acre, and to require that excess poultry manure be transported out of the watershed. The state also asked Frizzell to impose a moratorium on poultry litter application until the other measures it wants are in place.

The watershed remediation plan wanted by Oklahoma would make the Illinois River “a parallel universe” a defense attorney told the court.

“The Illinois River would be the only scenic river with this regulation, a parallel universe. How would disputes be handled? It would be a lousy result for this lawsuit and for the state,” he said.

State’s attorney Louis Bullock told Judge Frizzell that the end of 50-days of trial is a relief.

“We are transferring the weight from our shoulders to the court where so much hangs in the balance,” Bullock said. “The reality we are faced with today is a green, slimy mess of algae and green rocks and a green lake.” Bullock cited testimony that 76-percent of the phosphorus in the watershed, some 354,000 tons a year, is from poultry waste, a fact he said was uncontested by the defense. “It is clear that poultry has played a major role in getting to where we are today. It is clear the court should find that the defendants have created a nuisance under state and federal laws,” Bullock said. “Each defendant structured their business in the Illinois River watershed and pollution is inevitable. As a business model and for pure economic reasons, they concentrated in the watershed. They put phosphorus by the truck and trainload into their birds and the waste was disposed of by land application,” Bullock charged in alleging liability.

“The fundamental idea is that someone can destroy the river valley because they needed to make money. We are not that poor that we need to give up the beauty of this landscape in order to make a profit,” Bullock said. Three companies, he said, Tyson Foods, Cargill, and Georges, share direct liability because their research farms continued to land apply poultry waste even though soil tests showed phosphorus in amounts ranging from 797 lbs. per acre to 2,166 lbs. per acre.

Judge Frizzell praised the lawyers of both sides for their legal “craftsmanship” giving no indication of when his decision might come.

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