By Juliet Eilperin
Washington Post Staff Writer
Monday, August 28, 2006
TAHLEQUAH, Okla. -- Every time the rain comes down, muddy water laden with phosphorus, arsenic and other contaminants flows into the Illinois River from chicken farms nearby and just across the border in Arkansas.
The inflow of nutrients has begun to change the river and the reservoir it feeds, Tenkiller Ferry Lake. At times the water is clogged with fish-killing algae, occasionally emitting a foul odor that affects the drinking water and undercuts the area's attraction as a tourist destination.
"This river used to be crystal clear," recalled Ed Brocksmith, a member of the Oklahoma Scenic Rivers Commission. "Phosphorus is the problem here."
Frustrated that nearly four years of talks failed to produce a solution, Oklahoma is now suing eight firms -- including Arkansas giant Tyson Foods Inc. -- on the grounds that the chicken waste applied to crops near the river contains hazardous chemicals that are damaging the ecosystem and jeopardizing the region's tourist industry.
"They're not fertilizing, they're dumping," said Drew Edmondson, an Oklahoma lawyer who filed the suit last year. "My concern is for the environment. My concern is for the lake and the river, which I'm watching being degraded before my eyes, literally."
Across the country, states and localities are suing polluters outside their jurisdiction, and sometimes each other, in efforts to curb air and water contamination that respects no borders. They say they are forced to act because Congress and the Bush administration have failed to crack down on everything from storm water runoff to dumping of invasive aquatic species.
In some cases, there is little in the way of federal law or regulation. This is the case with the factory farms in Arkansas and Oklahoma. The administration is still sorting through which regulations apply to poultry, dairy and hog farmers, and existing rules don't apply to those who buy the waste for fertilizer. And some lawmakers, such as Rep. Ralph M. Hall (R-Tex.), are lobbying to permanently exempt these industries from even minimal federal oversight.
Other times the administration has blessed activities in one state that another state opposes: Virginia -- over Kentucky's objections -- plans to allow a strip mining company to discharge more than a billion gallons of briny water into a river just eight miles from where it flows into Kentucky.
In others instances, the Bush administration has declined to take action, such as the Environmental Protection Agency's decision not to regulate ballast water from freighters that release invasive species into waterways.
Joel A. Mintz, an environmental law professor at Nova Southeastern University in Miami, said he has noticed an increase in such cases. "The [state attorneys general] have gotten aggressive in the last couple of years," Mintz said. "It's a little hotter now."
EPA spokeswoman Jessica Emond said the agency works hard to monitor all pollution.
"EPA is committed to protecting public health and the environment by coordinating closely with its 10 regional offices to implement environmental laws at the state and regional levels," she said. "In addition, EPA solicits and takes into consideration comments submitted by state and local governments when developing national rules and regulations."
But New York Attorney General Eliot L. Spitzer, who has sued EPA over its aquatic species policy as well as air pollution rules, said the flurry of legal activity reflects "the lack of enforcement" by the administration.
"It's more than a trend, it's an ideological decision that's been made by the Bush administration," Spitzer said. "Into that void we have stepped in to enforce the law."
In many cases, state lawyers say out-of-state pollution jeopardizes their tourist industry. Kentucky Assistant Attorney General Scott Porter, for example, argues that Virginia's proposal to let Consolidation Coal Co. release water from its mining operations could damage Fishtrap Lake, a reservoir filled with bass and catfish that attracts tens of thousands of visitors a year.
Porter's office is weighing whether to sue Virginia. "We will take every available method we have to protect the waters of Kentucky."
Leslie Vincent, chief engineer of Virginia's Division of Mined Land Reclamation, said Virginia is aware of Kentucky's concerns but believes the plan's requirement for mixing the discharge with cleaner water should keep levels of harmful chloride to an acceptable level. "It should not be an adverse impact," Vincent said.
In Arkansas, poultry farmers see the Oklahoma lawsuit as a threat to their livelihoods. Keith Morgan, who raises 178,000 chickens at a time for Arkansas-based Peterson Farms, said he and other producers make a profit selling their waste as fertilizer and cannot afford to truck it out of the million-acre watershed.
No one questions that Tenkiller Ferry Lake and the Illinois River -- which travelers in 1870 described as "one of the prettiest rivers on the continent, sparkling with crystal waters" -- are being flooded with nutrients. The lake and river remain a popular tourist site that generates at least $42 million a year in revenue: Last week, Adam Visor and his friend Jordan Hebert drove three hours from Oklahoma City to fish for smallmouth bass along the river's banks.
Edmondson and allies such as Brocksmith say a significant amount of the pollution comes from the 200,000 tons of chicken litter -- waste and shavings that fill poultry houses stretching the length of nearly two football fields -- that more than 2,800 farmers in Arkansas and Oklahoma buy and apply to their crops.
Poultry officials counter that western Arkansas towns such as Bentonville and Fayetteville are also to blame for the river's pollution, since they rank among the fastest-growing in the nation and generate their own runoff. John Elrod, a partner at the Arkansas firm of Conner and Winters, who represents Simmons Foods, said the industry is willing to help Oklahoma but will not fold under legal pressure.
"Our attitude all along has been if you need someone to help with this problem, we're going to be standing at the front of the line, but if you're going to file a lawsuit against us, it's going to be an all-day affair," Elrod said.
Oklahoma's lawsuit could drag on for years. The outside lawyers that Edmondson retained stand to get a third of any eventual settlement or court award, along with attorney's fees; the defendants have hired a phalanx of attorneys from the District, as well as Arkansas and Oklahoma.
The public relations fight is equally intense. An advocacy group called "Save The Illinois River" has printed baseball caps and tie-dyed T-shirts with the slogan, "Fed Up With All The Arkansas Chicken Poop!" and plans to release a CD of songs paying homage to the river. The poultry industry has responded in Oklahoma with a massive television and radio ad campaign touting the virtues of "organic" chicken litter, and it recently donated $1 million to the state's Scenic Rivers Commission to improve recreational facilities.
"Oklahoma should be saying thank you to Arkansas for providing this kind of income to one of the poorest areas in the nation," said Bev Saunders, who raises chickens on her 540-acre Oklahoma farm.
But Edmondson -- who does not blame the administration but faults Congress for failing to pass a broader law regulating poultry waste -- is pressing ahead.
Some have succeeded with such litigation. In Texas, Waco officials sued after city drinking water became polluted by more than a dozen out-of-town dairy farms dumping waste into the North Bosque River. Eventually, Waco reached a series of settlements, including an agreement to monitor the river's water quality for two years and a pledge by the dairies to make sure any new cows they acquire will not worsen the area's water pollution.
Spitzer has scored some legal victories over the Bush administration, but he acknowledged there are limits to pursuing environmental goals through litigation.
"Long term, states cannot supplant the role of the federal government in addressing these issues," he said.