By Jim D. Bradbury
James D. Bradbury, PLLC
On Dec. 19, U.S. District Judge Gregory K. Frizzell entered a final judgment in the long-running action by the State of Oklahoma against Tyson Foods and related poultry corporations for alleged pollution of the Illinois River Watershed (IRW) from the overapplication of poultry waste, principally phosphorous.
The lawsuit, originally filed in 2005, has carried on for nearly two decades. Although the defendants attempted in the end to avoid injunctive relief by showing that conditions have improved in the IRW, negating the need for remedial action, the Court found for the State of Oklahoma. Contrary to the arguments of defendants, the Court found that conditions had not improved in the IRW, finding the defendants liable for statutory public nuisance, federal common law nuisance, trespass and violation of Oklahoma statutes. The Court further found a permanent injunction was warranted and ordered extensive remediation and monitoring requirements over a minimum 30-year period. The Court’s judgment ordered the following:
- Remediation of the watershed by defendants to be conducted in a phased approach that includes remedial investigation, planning, implementation and monitoring;
- Appointment of a master to oversee the investigation and planning of the remediation;
- Defendants shall pay all costs associated with remediation;
- Extensive watershed monitoring;
- Extended period of oversight by the master for at least 30 years;
- Restrictions on land application of poultry waste; and
- Payment into an evergreen fund to be maintained for not less than 30 years that will include a $10 million deposit within five business days of appointment of the master.
In addition to the significant requirements of the injunction, the Court addressed the issue of penalties against the defendants. Although the State of Oklahoma alleged ongoing and continuing violations by defendants and sought penalties exceeding $100 million, the Court found insufficient evidence to support ongoing violations. The Court instead concluded that Oklahoma demonstrated 248 total documented instances of violations by defendants and ordered penalties totaling $420,000.
This decision will have a significant impact on the IRW, which will extend far beyond the borders of Oklahoma and into Arkansas. Numerous poultry operations exist in Northeastern Oklahoma and Western Arkansas. Tyson and other companies have already indicated that they may not renew contracts with growers in the IRW, shifting their operations to other locations that are not subject to the Court’s oversight or restrictions. The implications will undoubtedly be significant and something to watch as the IRW restoration and restrictions unfold.
It also serves as an important warning to agricultural producers and operators nationwide of the importance of maintaining compliance with permit requirements and nutrient management.
