Northwest Arkansas Democrat-Gazette

Motion to dismiss poultry suit denied

Companies sued over pollution in river


A federal judge denied Arkansas poultry companies’ motion to dismiss a 19-year-old lawsuit against them by Oklahoma over pollution of the Illinois River and set a July 23 status hearing in the case in a court order issued Wednesday.

The case’s 11 defendant companies argued the 13-year delay between the end of the case’s trial on Sept. 24, 2009, and the Jan. 18, 2023 ruling against them sufficed as grounds for dismissing the case. U.S. District Judge Gregory K. Frizzell in Tulsa, Okla., disagreed. The defendants filed their motion to dismiss on Oct. 26.

“As previously stated, the court previously found and concluded that defendants’ conduct constituted a continuing nuisance and/or trespass, which caused ongoing injury to the waters of the IRW,” referring to the Illinois River watershed, Frizzell’s court order states.

Pollutants such as phosphorus built up in the soil for years before poultry companies modified their practices in light of the lawsuit, so the problems brought in the lawsuit persist, the order states. The poultry companies also did not show their efforts to reduce the pollution are sufficient, the order says. Phosphorus pollution from chicken litter used as fertilizer on farms severely affected water quality in the river, Frizzell ruled earlier.

The Illinois River’s headwaters lie in Northwest Arkansas. From there the river flows into Oklahoma. Oklahoma brought the suit against poultry producers, contending litter from poultry growers polluted the scenic river. Frizzell agreed to let the parties attempt mediation to find a remedy to clean up the pollution after his January 2023 ruling, saying he would wait to see if the mediation efforts succeeded before imposing a judgment of his own. Those negotiations failed, the parties informed the court on Oct. 26.

Remediation is needed to reduce the impacts of the pollution caused by decades of over-application of poultry waste and should be paid for by the poultry companies, according to the motions filed by Oklahoma Attorney General Gentner Drummond. Drummond asks the court to appoint a special master to oversee remediation efforts in his motions.

Options to evaluate for the remediation plan include: buffer strips, increased treatment of drinking water, digging up polluted soils, alum application to fields and to Lake Tenkiller along the river, crop and nutrient management, bank stabilization, constructed wetlands, sediment removal from Lake Tenkiller and exportation of poultry litter outside the watershed for application to phosphorus-deficient soil elsewhere, according to the attorney general’s motions. Oklahoma also seeks monetary damages, attorney fees and costs.

A spokesman for the defendants said they are formulating a response. Calls and an email to the Oklahoma attorney general’s office late Wednesday were not returned by press time.

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