During the 12 weeks from mid-September to mid-December in the federal courthouse in Tulsa, Oklahoma Attorney General Drew Edmondson put on a lot of evidence that it is poultry litter that is polluting the Illinois River.
Oklahoma is finished presenting its case, and now attorneys for 11 chicken companies being sued will have their turns to call witnesses in the trial that will continue in the New Year.
To greatly simplify what’s occurred to date, one might say Oklahoma has been arguing the facts and the chicken companies are arguing the law. And, with so many lawyers in the trial, there’s been no shortage of pounding on the table.
The state put a lot of facts into play. There are now more than 150 million chickens and turkeys being raised in the watershed, almost eight times as many as there were in the 1950s.
Poultry in the watershed weigh more than the cattle, swine, and humans, and the amount of chicken-related phosphate exceeds all other waste. Phosphorus levels in poultry waste are 3.5 times higher than those in cattle manure.
Chicken manure in the Illinois River basin has four to six times more phosphorus than cattle manure.
The basin’s Lake Tenkiller may require 100 years to recover from the damage done to it by 577,000 pounds of annual phosphorus flows.
And the state had some damaging memos from the chicken industry itself. Ron Mullikin of Peterson Farms wrote, “Time continues to pass with no solutions of dealing with excess animal waste and the environmental problems it is creating.”
The non-jury trial is being heard before U.S. District Judge Gregory K. Frizzell, who made a couple of rulings as the state rested. He ordered Oklahoma to turn over all soil test results in the Illinois River basin since they began in 1998. Chicken industry attorneys had charged Oklahoma was “cherry-picking” the data to show only those tests that documented high phosphorous levels in soils and water.
More damaging, however, was Judge Frizzell’s ruling that chicken manure is not solid waste as defined by the U.S. Resource Conservation & Recovery Act. Edmondson has already said he will appeal that ruling to the 10th Circuit in Denver.
There are frequent mentions of “poultry litter” on the Environmental Protection Agency’s (EPA’s) Resource Conservation & Recovery Act website. It, in conjunction with the Comprehensive Environmental Response, Compensation & Liability Act, is what governs the federal “super-fund” law.
In making his ruling, Frizzell said “poultry litter” is not being discarded, thrown away, or abandoned.
It was not the first time that the judge made a ruling that was damaging to Oklahoma. Before trial, he denied the state’s demand for more than $600 million in damages from the chicken companies. At the same time, Frizzell vetoed an agreement that allowed the state to represent the Cherokee Nation.
The Cherokee Nation appealed its exclusion from the trial to the 10th Circuit in Denver, and is now waiting for the decision. The tribe says it has water rights interests that must be represented.
For now, the trial will continue with the chicken industry attorneys calling the witnesses. They managed to get in one “expert” witness before the holiday break in the trial. That expert blamed wastewater treatment plants for the pollution in the basin, not the bird poop.