Sunday, April 01, 2001

Chicken smells bring lawsuit




By Kimberly Hefling
The Associated Press

        MARION, Ky. — To those who raise chickens for a living, it's the smell of money. To those who live next to a Tyson Foods contract chicken farm here, it's a pungent stench that attracts buzzards, sticks in your clothing and makes just about any kind of outdoor activity unbearable.

        “It's so bad you almost sometimes want to get sick,” said Jennifer Moore, who lives in the adjacent Greenwood Heights subdivision.

        Just about everybody agrees that the smell emanating from hundreds of thousands of chickens — and their waste — isn't pleasant.

        But is it a public nuisance punishable by millions of dollars in fines?

        Prosecutors here think so. Armed with complaints from 10 residents, they're going to court in a closely watched case that's one of the first times Tyson has faced criminal action because of chicken smells.

        If convicted at the May 18 jury trial, Tyson and farmer Mike “Bud” Wardlaw could face up to $100 million in fines per day.

        Springdale, Ark.-based Tyson contends the prosecution under a city public nuisance ordinance is misguided and the fines it calls for are excessive.

        “Nuisance ordinances are intended to address animals given to chasing vehicles, attacking other animals,” Tyson lawyers wrote in court papers. “These offenses are not typically committed by nonresident chickens.”

        Marion, a town of 3,200 about 120 miles northwest of Nashville, Tenn., isn't the first to deal with such complaints. Over about the last decade, an increasing number of western Kentucky farmers have opened chicken operations and nearby residents have grumbled about the smell and potential harm to groundwater. But state officials said never before have the complaints made it as far as a criminal jury trial.

        Crittenden County Attorney Alan Stout said his prosecution is necessary because the smell has disrupted life in such a manner that it damages the property.

        “When the actions of a corporate citizen have such a strong impact on the day-to-day lives of ordinary citizens, then the only way to combat the actions of corporate America are through civil penalties and fines,” Mr. Stout said.

        Mr. Wardlaw purchased the 111 acres to build the operation in 1997 with a relative who later left.

        That same year, more than 50 neighbors filed suit in an attempt to stop construction. A judge ruled against them, saying there was no legal reason to curtail the project until it became a public nuisance.

        It was not until later that an emergency state regulation went into effect requiring that chicken houses be at least 2,000 feet from an incorporated city limit.

        Mr. Wardlaw's operation would be too close under current regulations, said Ira Linville, executive director of the state's newly created Office of Environmental Services.

        Mr. Wardlaw declined to comment for this story.

        The city council in 1999 passed an ordinance amending the penalties under an existing ordinance making it possible to fine by the animal per day.

        Mr. Wardlaw's operation, which includes 16 chicken houses, typically houses 400,000 birds.

        That means, if convicted, Tyson and Mr. Wardlaw could face up to $100 million in fines per day under the ordinance.

        “If you do the math, 400,000 times $250, you can see what it adds up to,” Mr. Stout said.

       



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