By Bill Lonon
THE MORNING NEWS

The outcome of a court hearing set to begin this week threatens to drastically change the way poultry farmers and companies conduct business in Northwest Arkansas. And it could hurt the area's already struggling economy.

Oklahoma Attorney General Drew Edmondson has asked a federal judge to halt all applications of poultry litter in the Illinois River watershed, one of two main watersheds in Northwest Arkansas. A hearing on his request for a preliminary injunction pits Edmondson against Springdale-based Tyson Foods and other players in the Arkansas poultry industry.

The hearing is set to begin Tuesday in the U.S. District Court in Tulsa.

The poultry industry directly employs 9,900 people in Benton and Washington counties. Another 5,400 jobs are indirectly related to the industry, according to University of Arkansas data.

The income for these jobs totals $515 million per year or 6.7 percent of the regional income earned in 2006.

Poultry farmers in the watershed could lose from $39 million to $77 million in the first year if the judge rules against them, said Jackie Cunningham of the Poultry Community Council, advocates for the poultry industry.

The poultry companies could lose even more.

Poultry remains Arkansas' most valuable commodity, according to Larry Traub, agriculture economist for the Economic Research Services of the U.S. Department of Agriculture. In 2006, Arkansas broilers had a value of about $2.65 billion, which was 42 percent of the state's overall farm receipts, he said.

Benton County ranks first in the number of broilers, second in turkeys and second in layers. Washington County ranks second in broilers, fourth in turkeys and first in layers. The amount of litter produced in Northwest Arkansas is big.

Edmondson alleges poultry companies, based in Arkansas or doing business in Washington and Benton counties, use chicken litter with the "fecal bacteria it contains" as fertilizer. Litter is wood chips and peanut or rice hulls used in poultry houses that becomes laden with manure.

The request for an injunction claims chicken litter has bacteria levels typically found in raw sewage and can run off into the rivers and streams as well as seep into the groundwater of the watershed.

The two-state Illinois River watershed totals more than 1.69 million acres, with almost 575,000 acres of the watershed in Oklahoma, according to the motion. The problem, Edmondson says, is that 1,700 groundwater wells in Oklahoma's part of the watershed are highly susceptible to pollution from land application of animal waste, and the 155,000 people who annually use the streams for recreation expose their skin to the fecal bacteria.

The attorney general has evidence showing "outrageously high levels of harmful bacteria in the water," said Charlie Price, spokesman for Edmondson.

"There are all kinds of bacteria," Price said, "but we have been focusing on, and searching for, poultry waste.

The attorney general will show a unique chemical and bacterial signature exclusive to poultry, Price said.

"What we are saying is that poultry waste is a significant source."

Counterpoint

Poultry companies argue they are working toward meeting environmental goals that both states have set.

Five poultry companies agreed in 2003 to give $1.2 million to the Oklahoma Scenic Rivers Commission. In a negotiated settlement with Tulsa, the companies also agreed to fund erosion control efforts, stabilize stream banks, build bathrooms on camping grounds and seed money to start a program to begin fencing of the Illinois River from cattle.

The companies also started BMP's Inc. to coordinate removal and transportation of hundreds of tons of poultry litter from watersheds.

Arkansas has signed a statement of joint principles and actions with Oklahoma. The agreement established a number of measures aimed at improving the quality of the water in the watershed. The measures included reduction of phosphorous and nitrogen, watershed monitoring, data collection and a number of items dealing with poultry litter.

The agreement also said Arkansas "will spend hundreds of millions of dollars to improve the sewage discharge plants in Northwest Arkansas," said Edward Swaim, general counsel of the Arkansas Natural Resources Commission.

The agreement set 2012 as the deadline for the phosphorous reduction goals to be met.

"He didn't wait very long," Swaim said of the attorney general's 2005 lawsuit.

If Edmondson wins the injunction, poultry growers in both Oklahoma and Arkansas would be prohibited from using their litter locally and ranchers who use fertilizer would have to buy commercial ones, Cunningham said.

In Oklahoma and Arkansas, chicken growers are required to have the litter and the soil tested, and to determine the slope, vegetative buffers and potential rainfall, Cunningham said. This information helps the farmer determine how much litter he can spread without overapplying and possibly contributing to phosphorus runoff.

Deep Pockets

The poultry companies say they are being targeted because they have money.

"It's about the deep pockets," said Washington County Judge Jerry Hunton, who also raises chickens. He is the president of the Poultry Partners, mostly comprised of Oklahoma chicken growers.

The poultry companies have financial resources as potential defendants that others do not, Hunton said. Poultry companies own the birds from breeding to grocery store, whereas other industries such as cattle, control only a small part of the process. In the cattle industry, a suit has to be filed against each cattle rancher, according to Robert George, an attorney with Kutak Rock, which represents Tyson Foods in the case. The same is true for those who raise swine or people who own individual septic systems.

The poultry companies claim in their response to Edmondson's motion that even Oklahoma officials have said there is no bacterial public health crisis in the watershed. They also argue poultry litter is not solid waste, as defined by the Resource Conservation and Recovery Act, and is used as a beneficial and natural fertilizer.

The reply also said Edmondson's evidence is "driven by litigation, not science."

"Both sides will stand before the federal court next week," Edmondson responded Friday. "The state will stand behind facts, statistics, science and the law. Who will the corporate polluters hide behind?"

Rule Change

The focus in the lawsuit seems to have changed between the original lawsuit filed in July 2005 and the temporary injunction against spreading chicken litter filed in November 2007, George said.

The original lawsuit focused on the Comprehensive Environmental Response, Compensation and Liability Act, which principally covers hazardous waste and is usually referred to as the Superfund law. If poultry litter is found to be a hazardous substance under the act's statutes, litter might have to be removed, transported and disposed of as hazardous waste.

U.S. Sen. Blanche Lincoln, D-Ark., last March introduced a bill removing animal manure as a hazardous substance or pollutant under the act. The bill was sent to the Senate Committee on Environment and Public Works. A similar bill is pending in the House.

Edmondson appeared before the committee to testify against the measure. Sen. Christopher Bond, R-Mo., said Edmondson's lawsuit was an inappropriate use of the Superfund law. The ranking minority member of the committee, Sen. Jim Inhofe, R-Okla., has previously spoken against the poultry lawsuit.

The temporary injunction motion, filed in November 2007, focused on the Resource Conservation and Recovery Act, which covers solid waste. When the volume of poultry litter reaches a certain point, the motion claims, it becomes solid waste rather than fertilizer.

State agencies in Arkansas and Oklahoma regulate the application of poultry litter. Their solid waste programs have been approved by the U.S. Environmental Protection Agency.

"The court will have to decide what law governs poultry growers," George said. "Is it the poultry laws Arkansas and Oklahoma enacted?" He referred to the agreement with the 2012 deadline.

By The Numbers

* 4.4 million tons: Amount of phosphorous removed from the two-state Illinois River Watershed since July 2005

* 148,194 tons: Amount of chicken litter removed from the Illinois River Watershed by BMP's Inc., a nonprofit company formed by poultry companies.

Source: BMP's Inc.

Poultry Suit Timeline

By THE MORNING NEWS

* June 13, 2005: Oklahoma Attorney General Drew Edmondson files federal lawsuit against eight poultry companies and six subsidiaries that claims they are most responsible for excessive nutrients and pollution in the Illinois River watershed.

* Aug. 18, 2005: Negotiations between Edmondson and the poultry companies break down.

* Oct. 4, 2005: Poultry companies file third-party claims against more than 150 individuals and businesses in the watershed. Companies argue that plant nurseries, municipal sewage plants and others are also to blame for any phosphorus problem.

* March 24, 2006: Federal Magistrate Judge Sam Joyner allows Edmondson onto farmers' fields to sample soil, water runoff and chicken litter for nutrients and other pollutants over the farmers' objections.

* Sept. 21, 2006: Joyner splits third-party claims from main lawsuit and suspends proceedings on that lawsuit until Edmondson's suit against poultry companies is finished.

* May 2, 2007: The U.S. District Court of Northeast Oklahoma refuses to allow the State of Arkansas to enter the lawsuit.

* Nov. 14, 2007: Edmondson files an addition to the original lawsuit. The addition seeks a preliminary injunction to prevent application of poultry litter in the Illinois River watershed.

Source: Staff, Wire Reports