Judge backs off comment on litter
Posted on Wednesday, March 12, 2008
TULSA — U. S. District Court Judge Gregory Frizzell backed away Tuesday from his March 3 comment that poultry litter is “solid waste” under federal law.
Frizzell, who’s overseeing a hearing on a preliminary injunction request to ban the spreading of poultry litter on farm fields in the Illinois River watershed, explained his switch on the last day of witness testimony.
Attorneys are scheduled to give their closing arguments on the injunction at 1: 30 p. m. today.
“I have not decided the issue, folks,” Frizzell said about whether litter is solid waste. “To voice a curiosity is an attempt to express a message to lawyers that I need help with an issue.”
Oklahoma Attorney General Drew Edmondson sued eight poultry companies in federal court in 2005, accusing them of polluting the watershed with poultry litter. Oklahoma claims the litter threatens the health of people who recreate in the Illinois River that’s popular for canoeing and fishing.
During the hearing on March 3, Frizzell had said he believes poultry litter is “likely solid waste” under the Resource Conservation and Recovery Act of 1976.
The judge also told attorneys to stop lobbying in front of him.
“This court isn’t a legislature,” Frizzell said. “It’s a court of law. Your job is to help me wrestle with these issues.”
Poultry company witnesses who testified Tuesday did their best to cover almost every topic raised in the hearing’s first seven days. They discussed tracking fecal bacteria in groundwater, gastrointestinal diseases such as salmonella and campylobacter, and how cattle, septic tanks and wild animals may be responsible for much of the fecal bacteria in the watershed.
Dr. William Banner, medical director of The Children’s Hospital at St. Francis in Tulsa, testified that he sees no evidence that poultry litter is harming children in the watershed. He said children are good indicators of diseases because they tend to get sick before adults do.
Banner testified that people are more likely to get salmonella from bad food than the river’s water.
“There are some restaurants where the Banner family does not go out at,” he said.
Charles Andrews, a groundwater hydrologist and president of the Bethesda, Md.-based consulting firm SS Papadopulos and Associates Inc., challenged the testimony of Berton Fisher, a geologist who said contaminants would flow into groundwater through the watershed’s cracked limestone karst geology.
Fisher, who owns the Tulsa company Lithochemia, testified Feb. 20 that karst makes it easy for contaminants such as fecal bacteria on farm fields to flow into groundwater.
Poultry litter is a combination of bird manure and rice hulls, sawdust or wood chips, used as fertilizer for crops.
Andrews suggested leaky septic tanks are more likely to pollute groundwater than poultry litter. Hundreds of septic tanks in the watershed don’t function properly, he testified.
“The significance of that is a large number of systems have a liquid slurry and it’s going into the subsurface,” Andrews said.
Elizabeth Ward, an attorney for the South Carolina law firm Motley Rice, which is assisting Oklahoma with its case, sparred with Andrews during a 45-minute cross examination.
Andrews wouldn’t budge as Ward quizzed him about karst in other watersheds, saying it’s improper to generalize about karst in other areas and apply the logic to the Illinois River watershed.
“So you disagree with the state’s experts ?” Ward asked.
“I do disagree with their conclusions,” Andrews said.
Tim Sullivan, president of E&S Environmental Restoration Inc. in Corvallis, Ore., testified that Oklahoma failed to show a link between poultry houses and contaminated water through its research and sampling of water, soil and poultry litter.
He also went a step further, saying the cattle and urban runoff from Northwest Arkansas cities close to the headwaters of the Illinois River are more likely sources for fecal bacteria.
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