Farmers get right to results of tests

BY ROBERT J. SMITH

Posted on Saturday, January 6, 2007

U. S. Magistrate Judge Sam Joyner on Friday set a Feb. 1 deadline for Oklahoma to share aspects of its investigation into poultry farming.

Attorneys representing poultry companies in Arkansas described the decision as the court’s most significant ruling in their favor since Oklahoma Attorney General Drew Edmondson sued the poultry firms in June 2005.

“This is put up or shut up time for them,” said John Elrod, a Fayetteville attorney who represents Simmons Foods of Siloam Springs. “We can finally, after Feb. 1, go about the business of seeing where they are coming from.”

The attorney general’s office already agreed to provide the information to the poultry companies, said Charlie Price, a spokesman for Edmondson’s office.

The significance of the Feb. 1 deadline can’t be understated, Elrod said. It gives the companies more time to prepare for an expected 2008 trial in U. S. District Court in Tulsa.

The federal lawsuit against the eight poultry companies with operations in Arkansas alleges the companies, including Springdale-based Tyson Foods Inc., are polluting the 99-mile Illinois River that begins in Arkansas before crossing into Oklahoma near Siloam Springs.

The companies spread poultry litter — a mixture of bird manure and wood chips or rice hulls — on pastures to fertilize crops. The practice results in poultry waste polluting the river, Edmondson alleges.

The Illinois River holds the highest environmental protection in Oklahoma, where it’s deemed “scenic.”

Joyner, whose court is in Tulsa, held a hearing Dec. 15 on whether the state should share its testing and sampling results.

Joyner’s ruling Friday noted that Oklahoma has asserted that the tests show elevated levels of phosphorus, zinc, nitrogen, arsenic and other materials, but it didn’t offer specifics.

Mentioning the tests in court placed them “at issue” and gives the poultry companies the right to see the results, Joyner said. “The information is vital” to the poultry companies’ defense, he wrote.

Elrod said Edmondson’s office had hoped to “hide the ball and not give us any of the sampling data.”

“It was their intent at one point for them to withhold things that weren’t supportive of their case,” Elrod said. “If they took 100 samples and 18 supported their position, they were just going to ignore the other 82.”

Obtaining the results by February will allow the companies to find water pollution experts and evaluate the state’s samples and tests, Elrod said.

The state has conducted tests but has been unwilling to share results for the past 1 1 / 2 years, said Janet Wilkerson, a vice president at Decaturbased Peterson Farms and a spokesman for the poultry companies.

“The state has been making lots of public statements about these tests, and yet it has refused to let us know what the tests show,” she said. “Aside from the fact that the state’s refusal to produce the results of its testing would have seriously impaired our ability to defend ourselves, the state’s position also offended fundamental notions of fairness.

“ The government cannot just go around claiming that you’ve done something wrong and then refuse to tell you what. The court’s decision was well considered and clearly correct. We are glad the court agreed that the results of environmental tests are not protected secrets.”

Some of the tests conducted in preparation for the lawsuit and since it was filed have irritated Arkansans and Oklahoma farmers.

Farmers fretted about inspectors spreading bird diseases when they traipsed onto their property to evaluate soil and poultry litter. The court ordered the state to take measures to ensure that bird diseases didn’t spread when samples were taken.

The poultry companies wanted to split those samples taken at the farms, and Joyner last year required the state to share. Results of those samples haven’t been made public by the companies or Oklahoma.

Washington County Judge Jerry Hunton fumed in May 2005 when he learned of three instances of water sampling barrels being found in creeks that flow into the Illinois River.

Two were found on county property. The county didn’t give permission for them to be placed there.

“We don’t know what those barrels showed,” Elrod said. “We should be about to find out.”