Judge suggests he’ll treat litter as ‘solid waste’
Posted on Tuesday, March 4, 2008
TULSA — Poultry litter should be viewed as solid waste as defined by federal law, U. S. District Judge Gregory Frizzell said Monday afternoon.
Frizzell said he’s been considering how poultry litter fits into the federal Resource Conservation and Recovery Act, legislated in 1976.
Oklahoma seeks a preliminary injunction banning farmers from spreading poultry litter on farm fields in the Illinois River watershed. The state must prove that spreading litter is a threat to human health and that litter is “solid waste” under federal law.
“Under RCRA [the Resource Conservation and Recovery Act ], this is likely solid waste,” Frizzell said.
Oklahoma Attorney General Drew Edmondson sued eight poultry companies in 2005, claiming that poultry litter threatens human health in the watershed and that it should be considered solid waste under the Resource Conservation and Recovery Act. The watershed includes areas of Northwest Arkansas and northeast Oklahoma.
A portion of the federal law defines solid waste as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from” agricultural and other types of operations.
Frizzell’s comment struck a blow to poultry companies fighting the injunction in a federal court hearing.
Attorneys for the poultry companies said they were surprised to hear the judge’s comment because he hasn’t heard all of their expert witnesses testify about the importance of poultry litter as a crop fertilizer.
Edmondson, who sought the injunction in November, said during a break in courtroom testimony that he was encouraged by Frizzell’s declaration about poultry litter.
“It’s waste to these defendants,” Edmondson said. “They are just disposing of it. Its utility in the production of chickens is over.” What has been steady since 2005 when Oklahoma sued the eight companies, including Springdale-based Tyson Foods Inc., is how the two sides refer to poultry litter, consisting of rice hulls or wood chips after they are spread on the floors of poultry houses to soak up chicken and turkey manure.
State attorneys and their expert witnesses call it “poultry waste” and speak of “disposing” of it on farm fields.
Poultry companies’ attorneys and their experts call it “litter” and describe it as a crop nutrient or fertilizer without fail.
Frizzell, who, prior to Monday had hinted just once at how he was viewing evidence presented by the state, halted testimony for a time to discuss the Feb. 21 testimony of Jody Harwood and Roger Olsen.
Harwood, a University of South Florida biology professor, testified that she used microbial source tracking to find a poultry biomarker in fecal bacteria of chickens and turkeys and how she followed it from farm fields into groundwater and streams.
Olsen, an environmental consultant with Cambridge, Mass., consultant Camp Dresser & McKee’s Denver office, said he tracked a chemical poultry signature, seeing 25 components that are unique to poultry and finding it in groundwater and streams. Frizzell said he has wondered if the researchers’ work will pass the so-called “Daubert test.” A 1993 U. S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals Inc. suggested judges look closely at the scientific evidence of expert witnesses that’s shown to juries, and whether the work has been published in scientific journals and subjected to peers’ scrutiny.
Although a jury won’t decide whether there’s an injunction, Frizzell said that he’s thought about the Daubert test and wondered how much weight to give either expert, particularly Harwood.
“It does concern me,” Frizzell said. “It may be that her science is perfectly solid, but it’s not been subject to peer review.” Neither Harwood nor Olsen has published the work or asked for peers’ review, they testified.
Jay Jorgensen, an attorney representing Tyson Foods, encouraged Frizzell to discount their work. “You have to view that with a huge amount of skepticism,” he said.
David Page, an attorney for Oklahoma, acknowledged that the idea of a poultry signature and biomarker are new, but the methods used by Harwood and Olsen are widely accepted. There are biomarkers and signatures for cattle, for example, Page said.
“The method was tested, validated and accepted in the scientific community,” he said.
The hearing, which started Feb. 19, finished its fifth day on Monday. It’s scheduled to end Wednesday.
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