Oklahoma ruling could get chicken waste out of our rivers

A lawsuit charging poultry companies with polluting Oklahoma’s waterways got a boost this week when a federal judge ruled that large amounts of chicken waste can fall under federal anti-pollution laws.

Oklahoma Attorney General Drew Edmondson is suing Tyson Foods and other poultry processors, charging them with polluting an area of his state known for its chain of scenic lakes and rivers, treasured by fishermen, vacationers and local residents.

Edmonson’s suit charges that the companies are responsible for contaminating the Oklahoma-Arkansas watershed with hundreds of thousands of tons of bird waste from the 1,800 poultry growers in the area.

The processors own the chickens and other fowl that these “farms” raise in factory-like conditions. The bird waste has been dumped on the land for years, and the runoff has turned once-clear rivers murky with algae, Edmondson and other Oklahomans say.

Lawyers for Tyson, the world’s largest meat producer, and the 11 other companies named in the lawsuit, had argued that the poultry litter should not be defined as “solid waste” under federal environmental laws because it has a beneficial use as a fertilizer.

But a 2008 report by the Pew Commission on Industrial Farm Animal Production said the huge concentrations of animal waste produced by such factory farms means that “what could be a valuable byproduct becomes a waste that must be disposed of in an appropriate manner.”

The report called industrial food animal operations a “growing public health threat” that creates “contamination of rivers, streams, and coastal waters with concentrated animal waste.”

The contamination includes “harmful levels of nutrients and toxins, as well as bacteria, fungi, and viruses … all of which can affect the health of people both near and far,” the report said.

Edmondson says poultry contractors produce about 345,000 tons of raw chicken waste in the Oklahoma watershed each year. That much untreated poultry waste is equivalent to untreated human waste from between 4.2 million and 10.7 million people, the state says.

Federal Judge Gregory Frizzell, a Bush appointee, ruled Aug. 18 that excessive application of chicken waste makes it “solid waste.”

That is a blow to the poultry companies, as it could put them in a place they would rather not be: subject to federal pollution regulations for solid wastes.

In a 2003 case, a federal judge in Missouri found Tyson responsible for polluting the air with toxic ammonia from poultry waste.

The Sierra Club and local residents there had sued Tyson for failing to report hazardous releases of ammonia from four “animal factories” in the state. Thousands of chickens packed into closed buildings produce enormous amounts of ammonia in their urine. Ammonia fumes can cause respiratory problems for humans, and in some cases it can be fatal.

If Edmondson can win a federal ruling requiring the companies to clean up their act with regard to disposal of poultry manure, it could have national impact.

The case goes to trial Sept. 21.

The poultry companies have filed a slew of pre-trial motions aiming at derailing the lawsuit. Earlier the judge had sided with them on several issues. But this week he issued several rulings favorable to the state and environmental advocates.

Tyson and other poultry companies had tried to get the judge to revoke a $120,000 settlement that one company originally named in the suit, Willow Brook Foods, reached with the state. But the judge upheld the agreement.

He also ruled that a well-known agricultural economist who says the poultry industry has known for years about the environmental harm chicken waste causes would be allowed to testify in the case. The judge had previously barred two other expert witnesses from testifying for the state.

The economist, C. Robert Taylor, holds an endowed chair in agricultural and public policy at Auburn University in Alabama. Taylor has documented how poultry companies closely control their contract growers’ operations, with the aim of cutting costs and maximizing profits. Dumping raw bird waste costs less than doing something to prevent pollution.

In the 2003 Missouri case, Tyson claimed it was not responsible for the pollution because its factory farms are run by independent contractors. But the judge ruled that Tyson is “clearly in a position of responsibility and power” and “has the capacity to prevent and abate” environmental damage. Tyson eventually agreed to spend half a million dollars to reduce ammonia emissions there.

The Oklahoma attorney general has also asked Frizzell to reconsider an earlier ruling barring the state from seeking monetary damages from the companies because the lawsuit did not include the Cherokee Nation as a plaintiff. Cherokee Nation lands are within the northeast Oklahoma watershed.

In May, the Cherokee Nation and Oklahoma signed an agreement acknowledging both parties’ interest in the Illinois River, which runs through Cherokee land, and assigning the state the right to prosecute tribal claims in the case against the poultry companies.

Cherokee Nation Attorney General Diane Hammons said the agreement represented the tribe’s authorization to the state to proceed in the litigation.

“Both the state and the Cherokee Nation are committed to the protection of the Illinois River Watershed and the longevity of those resources for our citizens,” she said.

In his earlier ruling the judge essentially said that agreement was not sufficient. This week he said he would consider the state’s request for a second look at the issue.

suewebb @ pww.org