Judge weighs litter suit still

Oklahoma trial concluded in ’10

It was one of the most high-profile civil cases in decades in Arkansas or Oklahoma federal courts.

The five-month-long trial that concluded Feb. 18, 2010, pitted the state of Oklahoma against Springdale-based Tyson Foods Inc. and five other Arkansas poultry companies. Spectators counted more than two dozen lawyers working the courtroom at a given time. At issue were poultry manure and pollution of the Illinois River, a 99-mile-long waterway that runs through Northwest Arkansas and into Oklahoma.

When closing arguments finished, both sides wondered how long they’d wait for a decision from U.S. District Judge Gregory Frizzell of Tulsa.

Two years and four months later, they’re still waiting.

The case already has taken more than three times longer to unfold than the average federal civil case that goes to trial, according to the Administrative Office of the U.S Courts.

“The issue was tried and fully briefed,” former Oklahoma Attorney General Drew Edmondson said last week. “I think there should have been a ruling by now.” Edmondson’s office filed the suit almost seven years ago. A spokesman for the office of his successor, Scott Pruitt, declined to comment last week.

Oklahoma wants the judge to forbid the spread of poultry litter in the Illinois River watershed where soil tests measure phosphorus at more than 65 pounds per acre.

Okla-homa’s current standard is 300 pounds per acre. Attorneys for the poultry companies have said the moratorium isn’t needed and would cause an economic hardship for their industry.

Oklahoma officials also had hoped to levy financial penalties against the companies. But Frizzell decided to exclude the state’s claims under the federal Comprehensive Environmental Response, Compensation and Liability Act. That decision could be appealed.

Tyson Foods hasn’t indicated the company wants Frizzell to hurry his verdict.

“This is a complex case with exhibits and a trial that spanned five months,” Tyson spokesman Worth Sparkman said in an e-mail. “In addition, it’s not the only legal matter on the judge’s docket. We remain hopeful that when a ruling is made, it will confirm our belief that the poultry industry is being environmentally responsible.”

The poultry companies deny they’ve violated any state or federal law.

Their attorneys have said Oklahoma failed to prove any aspect of its pollution case, including that the waste threatens people or the environment.

Frizzell’s office wouldn’t say when a judgment might be handed down. One spokesman said the U.S. District Court office in Tulsa, where the case was tried, is not fully staffed with judges and caseloads have increased.

Federal civil cases that make it to trial, rather than getting dismissed or otherwise settled, span about two years on average, according to records from the U.S. administrative courts office. That’s the time between filing and when cases are decided.

The Illinois River pollution case, filed Sept. 13, 2005, has stretched to six years and 10 months so far.

LIMIT SET

The lawsuit accuses poultry companies of polluting the Illinois River’s 1 millionacre watershed in Oklahoma and Arkansas by allowing contract farmers to spread poultry litter onto crops as fertilizer.

The material is a mix of manure and absorbent wood shavings or rice hulls swept from poultry houses. When rain washes it into streams, phosphorus from the manurecan promote the growth of algae and harm water quality. The suit contends the material is damaging the Illinois River and Tenkiller Ferry Lake.

Oklahoma has set a phosphorus limit of 0.037 milligrams per liter in the Illinois River.

Attorneys for the poultry companies and many Arkansas water experts say that limit is too low.

“About 0.1 milligrams per liter is what we consider to be the extent of technology right now” for removing phosphorus from wastewater, said Ryan Benefield, deputy director of the Arkansas Department of Environmental Quality. Arkansas has several wastewater plants that empty into the Illinois River Watershed.

Benefield credits the efforts of major wastewater treatment plant operators for upgrading their operations to reduce phosphorus emissions.

Generally, these plants throughout Northwest Arkansas now discharge less than 1 milligram of phosphorus per liter, down from 7-8 milligrams in the past, he said.

In addition, poultry companies are voluntarily hauling more litter outside Northwest Arkansas, where it can’t run off into the Illinois River, Benefield said. Projects to stabilize stream banks also have reduced pollution from runoff.

Average phosphorus concentrations on the Arkansas side of the Illinois have dipped about 75 percent between 2001 and 2010, according to the Arkansas Natural Resources Commission.

IMPROVEMENT SEEN

Randy Young, the commission’s director, has prepared a presentation on Arkansas’ efforts to improve the Illinois River Watershed. It shows a downward trend in phosphorus concentrations in the river south of Siloam Springs, where it runs into Oklahoma.

In 2001, samplings averaged roughly 0.33 milligrams of phosphorus per liter. By summer 2010, the average count had dropped to about 0.08 milligrams, his presentation shows.

“The river is absolutely better,” agreed Derek Smithee, chief of the water quality programs division for the Oklahoma Water Resources Board. “We’ll continue to try to work with Arkansas and ... Oklahoma to try to meet the standard.”

What many Arkansans fail to understand is what the Illinois River means to Oklahoma, he said.

It is one of that state’s six designated “scenic rivers,” giving it special environmental protection.

“Beautiful streams like the Illinois River are fairly common in Arkansas,” Smithee said. “But they’re not common to us. ... We want to protect it very jealously. It’s special to us.”

So far as the lawsuit, Arkansas and Oklahoma state and local officials, poultry company executives and environmental group staffers wonder when they’ll see adecision.

“I wish I knew, but I don’t have a clue about why Judge Frizzell is taking so long,” said Ed Brocksmith of thenonprofit Save The Illinois River group.

Others familiar with the case said that they understand Frizzell faces a huge task in working to reach a decision.

Records list more than 2,900 separate filings in the case, ranging from a few sheets to hundreds of pages each.

“I didn’t think (a decision) would take this long,”said Ed Fite, administrator of the Oklahoma Scenic Rivers Commission. “But the judge has his work cut out for him. ... This is going to be a very complicated ruling to be written.”

Northwest Arkansas, Pages 15 on 06/24/2012

Upcoming Events