DENVER — Whether Oklahoma should be allowed to stop poultry companies in Oklahoma and Arkansas from spreading poultry waste in the Illinois River watershed is currently being weighed by a federal appeals court. The case is being closely watched by the poultry industry as the final ruling could result in an increase in the cost of raising chickens, according to The Associated Press. On March 11, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver heard arguments in the case.
Judges noted Oklahoma hasn't proved that bacteria in the 1,500-square-mile watershed are caused by poultry waste. But attorney Fredrick Baker, who represents Oklahoma, said the state doesn't have to prove contamination, only that 345,000 tons of chicken waste dumped there annually "may" cause contamination.
Last September a judge denied Oklahoma's request for an injunction. The judge agreed with the poultry industry that cattle and human waste could also be causing the contamination. The request was part of a larger pending environmental lawsuit.
The 10th Circuit judges did not say when they will rule on the case.
Oklahoma Attorney General Drew Edmondson is suing 13 Arkansas poultry companies over the effects of over-application of chicken waste in the watershed. Mr. Edmondson said the bacteria contamination was discovered as they prepared for the lawsuit, which was filed in 2005.
State officials estimate the application of untreated poultry waste in the watershed is the equivalent of untreated human waste from between 4.2 million and 10.7 million people.
"Your burden is that it's this poultry waste, not just some poultry waste, which is the question if you're going to shut down these farms," Judge Paul Kelly said during Wednesday's arguments. "And that's what you're asking." He later added: "It [the purported bacteria from litter] hadn't done anything yet, and this has been going on for years."
If Oklahoma wins it could pave the way for similar lawsuits that could require poultry companies to turn to more expensive and difficult ways of disposing of the waste.
Arguing on behalf of the poultry companies, Jay Jorgensen said the state is misplacing the burden on them, not those who apply the waste to their fields. "Poultry litter has a value, it's a commodity that's bought and sold in this market," Jorgensen argued. "And the state had admitted that they couldn't find a single person anywhere who has become sick from the application of poultry litter. I submit that the state has failed to meet the applicable standard."
Businesses named in Oklahoma's 2005 pollution lawsuit are Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc. Cargill Inc., Cargill Turkey Production L.L.C., George's Inc., George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.
Approximately 1,850 poultry producers operate in the Illinois River watershed, with about 360 on the Oklahoma side.
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