Litter Mitigation, Litigation Moves Ahead

Changing human behavior in the Illinois River watershed can be accomplished several ways, according to the woman charged with the task.

“There’s regulation, litigation or motivation,” said Delia Haak, executive director of the Illinois River Watershed Partnership. “And we really want to focus on motivating people, letting them know why it is important and educating them about what a great resource we have here.”

For the state of Arkansas, with its hands tied from intervening in the lawsuit filed in 2005 by Oklahoma attorney general Drew Edmondson against the area’s poultry companies, two out of three ain’t bad.

While Edmondson failed last fall in his initial attempt at a preliminary injunction to completely halt the spread of poultry litter in the Illinois River watershed — a practice he argues is polluting Oklahoma’s waterways — an Arkansas regulatory regime in place since 2006 helped remove 75 percent of the poultry litter generated in Washington and Benton counties during 2008.

As Oklahoma’s case against Tyson Foods Inc., Simmons Foods Inc., George’s Inc. and others plods through its fourth year with a tentative trial date set for this September, parallel efforts locally and in Washington D.C. are aiming to make Edmondson’s lawsuit moot.

D.C. Intervenes

Edmondson was unavailable for comment while traveling to President Barack Obama’s inauguration in D.C., a city where he hasn’t been the most popular fellow since filing his suit against Tyson et al alleging that poultry litter should be classified as a hazardous waste under the 1980 environmental protection legislation known as Superfund.

Edmondson has drawn rebuke from Missouri Sen. Christopher Bond during testimony before Congress and seen his homestate Sen. Jim Inhofe sign on with Bond and 27 other senators of both parties as a co-sponsor of Arkansas Sen. Blanche Lincoln’s proposed bill to specifically exempt manure from the Superfund law.

“I’m very pleased that the legislation has enjoyed broad bipartisan support in Congress,” Lincoln said. “It demonstrates that this isn’t an issue that’s specific to Arkansas farmers. It’s an issue that could affect farmers across the country and will likely continue to attract attention as the Tyson trial proceeds.”

The litter lawsuit is believed to have widespread implications for the agriculture industry, and Lincoln said the bill’s passage would be “a priority” for her during the 111th Congress. Classifying manure as a hazardous substance could force farmers to incur a wide range of new expenses from storage and transportation to the purchase of commercial fertilizers.

“Our position is that it is not a biohazard,” said Haak, whose organization has 30 board members representing six types of stakeholders in the IRW, including some municipalities in Oklahoma.

“It is not hazardous waste. It’s a nutrient. It needs to be managed properly.”

U.S. Rep. John Boozman, who represents Arkansas 3rd District where the poultry companies operate, is also in favor of Congressional action.

“The Superfund program has been enacted in such a way that it explicitly exempts the application of chemical fertilizers,” Boozman said. “It doesn’t make sense to exempt chemical fertilizer but not organic fertilizer.

“Congress should clarify this issue before frivolous lawsuits destroy animal agriculture in our country and drive production overseas.”

The consortium of lawyers representing the poultry companies calculated the effects on local producers from complying with Edmondson’s proposed injunction would have run between $40 million and $70 million annually.

Oklahoma Northern District Judge Greg Frizzell denied Edmondson’s request for an injunction, writing that the state “has not yet met its burden of proving that bacteria in the waters are caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems.”

Edmondson threw his best witnesses at the injunction, but the poultry industry experts successfully refuted their claims tracing sources of pollution to the application of litter in Arkansas areas of the watershed.

Oklahoma has also drawn some fire for the hiring of outside legal counsel on a contingency fee basis. Edmondson has said that the lawyers will receive between 33 percent and 50 percent of any judgment won against the poultry companies. The total tab so far for the outside counsel is $20 million, $6 million of which went to one of the experts whose testimony was disregarded by Frizzell.

The U.S. Chamber of Commerce and the American Tort Reform Association oppose this practice, and in 2007, President George Bush signed an executive order banning federal agencies from hiring outside counsel on a contingency fee basis.

Edmondson’s use of contingency fees has been upheld by Frizzell, but the issue could be revisited in an eventual appeal because the Superfund law requires all monies received in a judgment to go toward environmental clean up first, while Edmondson has said the outside lawyers will be paid first.

Edmondson has also appealed Frizzell’s decision against the injunction to the 10th Circuit Court of Appeals in Denver. Edmondson sued for the injunction under the Resource Conservation and Recovery Act seeking to classify litter as solid waste.

If the 10th Circuit upholds Frizzell’s initial ruling, that could remove RCRA as one of the grounds of Edmondson’s lawsuit.

Similarly, the poultry industry will file motions for summary judgment asking Frizzell to rule that Edmondson cannot sue under Superfund.

Lincoln’s bill is not retroactive, meaning that while it certainly won’t help Oklahoma’s case, its passage in and of itself will not stop the lawsuit. However, even if Congress fails to act, Frizzell could read the law as it exists now and determine it does not apply to organic fertilizers.

Cleaning Up

Since 2006 within the IRW, any grower who spreads poultry litter must be permitted by the state and have a nutrient management plan in place based on soil analysis to determine phosphorus, potassium and nitrogen levels. About 7,887 nutrient management plans have been written since 2005.

During 2008, 25.8 million chickens in 1,339 growing houses generated 237,604 tons of litter within 14,698 acres of the IRW. Of that litter, only 59,515 tons were actually spread, with the rest either stored or shipped elsewhere. More than $2.7 million has been spent on the permit program since 2004, and Arkansas is eligible for $30 million in federal funds for the IRW.

The poultry industry has helped contribute to removing litter from the watershed by forming BMPs Inc., which stands for Best Management Practices. It has donated millions of dollars of truck litter to northeast Arkansas.

“In all fairness, they don’t get credit for all the things they are doing right and all the things they are doing in a positive way for the watershed,” Haak said. “Soil needs phosphorus for plant life. Water needs phosphorus for plant life, but not as much. There is a balance there.”

Edmondson has ordered state agencies not to work with counterparts in Arkansas on watershed management issues, of which Oklahoma has its own large share.

According to its Department of Environmental Quality report on waterways for 2008, 75 percent of the areas tested were impaired in some form from aesthetic problems to avoidance of body contact.

The report included 505 waterways classified as impaired, with around 14 in the IRW. Edmondson has argued in particular that litter is contributing E. coli, enterococcus and fecal coliform to waterways in Oklahoma’s half of the IRW.

The ODEQ report found E. coli in 153 waterways, enterococcus in 268 and fecal coliform in 108. The report states that 160 miles of waterways in Oklahoma are exposed to potential runoff from phosphorus, while 6,977 miles are impaired by enterococcus and 3,495 by E. coli.

Sources outside the state jurisdiction are reported to impair 177 miles of Oklahoma waterways, while 7,091 miles are impaired by grazing, 4,486 miles by residential districts and another 4,111 miles by highway runoff such as oil and grease.

Perhaps the most interesting aspect of the ODEQ report is what it lists as the No. 1 potential source of pollution: Unknown.