Two fights over Illinois River water quality approach court deadlines this month

The decades-long dispute over pollution of the Illinois River is back in federal court this month with two cases set for hearings between now and June 21.

The Illinois River's headwaters lie in Northwest Arkansas. Neither the wastewater treatment plants of booming cities in the region nor Northwest Arkansas’ poultry industry do enough to keep pollution out of the river, which flows into Oklahoma, according to claims at issue in the two different lawsuits.

Parties in a federal court case lost by Arkansas poultry companies must report on any progress made in negotiations on how to reduce pollution in the Illinois River by Friday, court documents show. A hearing in federal court in Tulsa, Okla., is set for one week later on whether the agreement, if any, is acceptable to the judge.

Meanwhile, another status report is due June 21 in federal court in Little Rock on whether the two wastewater treatment plants in Northwest Arkansas can operate within limits set by the state or a stricter limit wanted by the federal Environmental Protection Agency.

U.S. District Judge Gregory K. Frizzell ruled against the 11 poultry companies who were sued by then-Oklahoma Attorney General Drew Edmondson in 2005. Frizzell didn't rule in the case until Jan. 18 of this year. His ruling found poultry litter from the farms supplying birds to those companies pollutes the Illinois River.

"As late as the 1960s, its waters were crystal clear," Frizzell's ruling says of the Illinois River. "But that is no longer the case. The river is polluted with phosphorus, with adverse consequences that include low dissolved oxygen; abundant filamentous green algae; blue-green algae in Lake Tenkiller near the river's terminus; greatly decreased transparency; and significant detrimental impacts on the numbers and species of fish."

Frizzell ordered newly sworn-in Oklahoma Attorney General Gentner Drummond to negotiate with poultry companies on how to make up for and reduce pollution. In particular, phosphorus pollution from chicken litter used as fertilizer on poultry farms severely affected water quality in the river, Frizzell ruled. The judge's ruling found the poultry industry had taken major steps over the years to reduce pollution, but added more steps were needed.

Drummond's office declined comment citing the upcoming court date, but settling the lawsuit made his list of top priorities in an April 18 summary of his first 100 days in office. A spokesman for the poultry companies involved in the lawsuit didn't respond to a request for comment.

Drummond told the judge he would advise the court if negotiations falter, making that pledge in a March 17 hearing in Tulsa. As of Friday, no such notice appears in court records.

"There hasn't been a whole lot of transparency in the negotiating process, but Drummond is the first attorney general we’ve had in years who does what he says he's going to do," said Denise Deason-Toyne, president of the Save the Illinois River environmental group of Tahlequah, Okla. Drummond is the fifth attorney general for Oklahoma, including Edmondson, since Edmondson filed the suit.

Any agreement Drummond and the poultry companies reach requires approval by Frizzell, Deason-Toyne said Thursday. Frizzell's ruling and his statements in court hearings show his standards of what is needed are high, she said.

Drummond wants a special master, he said after the March hearing. Under federal law, a judge designates a special master to make sure court orders are followed. Any agreement with poultry companies to settle the lawsuit will require long-term supervision, he said at the time.

The most conservative estimate given in the trial of the amount of chicken litter produced by the defendants’ operations was 354,000 tons in 2009. Litter consists of waste and the wood shavings or rice hulls spread on the floors of chicken houses to absorb that waste.

Relief sought in the lawsuit includes curtailing runoff from litter. The relief could include restrictions on how much litter is used and how it can be applied in the watershed.

Recommendations made by expert witnesses in the trial include removing all poultry litter outside the watershed, buffer strips to control runoff, excavation of phosphorus-laden soil, applying alum to fields to bind phosphorus there, stream bank stabilization and constructing wetlands.

WASTEWATER TREATMENT

The other federal lawsuit over water quality in the Illinois River involves treated wastewater.

Arkansas’ Division of Environmental Quality filed the latest lawsuit in the dispute over water treatment plants on April 21, 2022. The division had approved wastewater permits for plant expansion for the Northwest Arkansas Conservation Authority and a renewal of the existing permit for the Springdale Water and Sewer Commission, only to have the federal Environmental Protection Agency contest them after the permits were issued and long after the comment period for making objections had passed.

The federal agency contends those permits approved by the state were drafts.

"The parties continue to hold settlement discussions and envision a multistep settlement framework," according to a status report submitted to District Judge Brian S. Miller in federal court in Little Rock on Feb. 21. "The parties therefore continue to believe that good cause exists to further explore a global settlement of both this litigation and the related litigation pending" in the 8th Circuit Court of Appeals.

Arkansas filed a review motion in the 8th Circuit at the same time as the Little Rock lawsuit, court records show. The 8th Circuit awaits resolution of the district court case before taking any action, court records show.

Both the EPA and state agency confirmed Friday they will not comment on ongoing litigation.

Springdale's permit would allow its treatment plant to release phosphorus at a monthly average of 1.0 milligrams per liter.

The Conservation Authority's plant in south Bentonville treats wastewater from Bentonville, Elm Springs and Tontitown and has contracted with Cave Springs to add that city. The authority plans to double its capacity. The state approved a permit that maintains the 0.1 limit for the first 3.6 million gallons per day and raises its allowable phosphorus limit to 0.35 milligrams for the next 3.6 million gallons once the expansion is complete. The authority releases treated wastewater into Osage Creek, which flows into the Illinois River.

The Springdale plant releases treated water into Spring Creek, a tributary of the Illinois River.

The EPA wants a monthly average of 0.1 milligrams per liter for both plants, according to court documents. The Oklahoma Department of Environmental Quality, meanwhile, has no objection to the higher level approved by Arkansas, according to court documents and public statements released by the Oklahoma agency.

"I hope common sense and cool heads will prevail," said Heath Ward, executive director at Springdale Water Utilities. Oklahoma and Arkansas agree on the allowable level, he said, and the EPA intervened after the permits were approved. "If you’re going to set up rules, you should follow the rules."

"I wouldn't call it close, but progress has been made," Ward said of negotiation with the EPA. "At the end of the day, we all want clean water," he said.

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