These rural families relied on the purity of the ground water for themselves and for their stock. They had no choice. Over the years, these country people learned to protect these resources, and as the chicken plant grew, the threat to the integrity of their clean water supply--their lifeline--increased proportionately. Pollution flowed through a creek (known as Dry Creek) into the area where the concerned citizens lived.

The situation became even more complicated in the 1960's when a poultry processing plant, Franz Foods, began discharging its chicken waste into Green Forest's sewage treatment plant. In 1968, Tyson, Inc. bought Franz Foods. Tyson is an Arkansas-based corporation, often described as one of the largest poultry processing companies in the world. The company immediately increased its production, thereby increasing proportionately the chicken sludge which was already being discharged into the city's sewage treatment system.

Residents affected by the pollution of their water brought suit against Franz Foods, Tyson's subsidiary, for maintaining a public nuisance. The suit was settled in 1976. In the settlement agreement, Tyson pledged not to discharge waste material into the city's sewage treatment plant that would in any way alter the condition of Dry Creek, either visually or chemically. Tyson further promised that it would refrain from violating any city ordinance or county, state or federal regulations or laws relating to the safety and purification of the water supply.

By the 1980's the city's sewage treatment plant was discharging waste stronger than domestic raw sewage. In May 1983, a sinkhole opened in Dry Creek and the creek's entire flow ran directly into the ground. At this time the wastewater disposal system of the city had a volume in excess of 1,000,000 gallons per day.
When the sinkhole first opened, the implications were not readily apparent to residents residing east of the city. The first noticeable impact was that Shipman Springs, a shallow aquifer on one of the plaintiff's property, went septic. A Pollution Control and Ecology field representative recounted that when he first visited Shipman Springs after the sinkhole opened, "It frightened me." As a result of the contamination in their spring, the spring-fed pond, stocked with trout, had to be bulldozed.

As time passed, other wells and aquifers in close proximity to Shipman Springs and the sinkhole began to show signs of contamination. Ultimately, the State Health Department was called in to investigate. The city attempted to cap the sinkhole by filling it with concrete, but the sinkhole reopened nearby within a short time.
In the December 17, 1984, issue of the Harrison Times (a North Arkansas daily newspaper), a headline read:

TYSON DUMPS SLUDGE AT FARM

Following was:
Two truckloads of what was described as pre-treated sludge from the Tyson food plant at Berryville was dropped on a hillside of a farm south of here Friday.
The sludge which contained grease, flowed down a hillside into a pond, and then into a wet weather creek which ultimately would have wound up in Dry Creek. It disappeared underground except during high water. 7 New York v. Schenectady Chemicals, Inc., 459 N.Y.S.2d 971 (1983)

On July 10th of the following year, the Times published:
OVERFLOWING SEWAGE REMAINS
A PROBLEM FOR GREEN FOREST AREA

Sights--sounds--smells. These have each long been associated with the classic celebration of the Fourth of July. Usually, however, we tend to think of the sights as exploding fireworks, the sounds as the echoing bang of impending firecrackers, and the smell as a prevailing aroma of burnt black powder.
Such was not the case last Thursday for several residents of the South Springfield Street area of Green Forest. Rather, their morning hours became such as to treat them to the spectacle of raw, domestic sewage flowing down the street. Like the sounds of rushing water. The smell quickly became those of a stench that can only be associated with sewage.
The following month, this appeared:
EFFLUENT SWIRLS DOWN SINKHOLE
A new sinkhole that apparently consumes more than 600 gallons of liquid a minute has developed in Dry Creek about three feet away from a larger sinkhole in the creek capped by the city a year ago.

Such streams as Dry Creek have an intimate contact with the ground water system through sinkholes. The effluent (industrial sewage) from the Green Forest Sewage Treatment Plant was discharging into Dry Creek, above the sinkhole. With its limestone formation easily dissolved by water, surface water in the stream regularly permeates to shallow aquifers and the water frequently submerges and re-emerges downstream.
For many years, the City of Green Forest had been knowingly polluting the ground water supplies of area residents east of the city by the operation of its wastewater treatment plant. The plant had been in almost constant violation of Environment Protection Agency (EPA) permit requirements over the years.
The principal industry in Green Forest, Tyson Foods, was also the principal polluter.

Sewage was known to have shown up in the wells for a period of approximately twelve years before the committee chaired by Steve Work began taking appropriate corrective action. The water became so contaminated in the area that property owners had to haul city water to their homes and farms at considerable personal expense and difficulty. Their quality of life deteriorated and the value of their property depreciated.

Dry Creek is not a creek at all. It is a geological structure that serves a s a drain over a rather large surface area during heavy rains. Otherwise, the only flowing water in the "Dry Creek" was the effluent from the Green Forest sewage plant, 1.3 million gallons per day by the city's estimates. A large sinkhole developed in the bed of Dry Creek about one-half mile below the city's effluent discharge point. Thereafter, all the sewage drained into this hole.

The stream bed was completely dry downstream from the sinkhole. No attempt was made to plug the hole until fish began to die in the springs two or three miles below. Prior to the sinkhole and since the sinkhole had been plugged, all of the effluent disappeared into the underground within 2-1/2 miles of the sewage plant.
Dye tests conducted by the Arkansas Health Department, engineering division, proved that the city's sewage was contaminating the area ground water. Further tests proved that other wells and fish ponds were likewise contaminated in this area east of Green Forest, below the discharge point for the sewage disposal plant.

Over the years the Environmental Protection Agency (EPA) and the Arkansas Department of Pollution Control and Ecology (ADPC&E) appeared to be paper tigers in that they assumed threatening postures, but never did anything about the violations.
Green Forest ordinance, Article III, Section V, provided that, "Inappropriate discharge produced in violation of the above referenced sections or which otherwise constitute a hazard to life or a public nuisance could be rejected by the sewer superintendent, or the discharger could be required to pretreat to an acceptable condition for discharge to the public sewers."

The Clean Water Act passed by Congress in 1972 created a comprehensive program, "to restore and maintain the chemical, biological integrity of the nation's water." The EPA was created to supervise and carry out the Clean Water Act provisions.
Until a sinkhole opened in Dry Creek and the Arkansas Health Department declared an imminent health threat zone east of the city in 1984, the city never used this ordinance or any other ordinance to constrain Tyson's overflowing of the city's wastewater treatment plant.
The 1972 Act provides that the Environmental Protection Agency shall issue permits authorizing effluent discharge in strict compliance with the conditions specified in the permit. The EPA was empowered to take necessary steps, including court actions, to enforce the provisions of the Clean Water Act.

EPA's Clarence Edmondson inspected the City's sewage treatment plant in April 1979 and reported:
. . .The City needs an administrative order to force compliance with the permit's general condition 1-d. This could prevent an increased flow into an already overloaded plant. Tyson … is planning to increase production over 67%. The increase is scheduled to be handled by adding an old floatation device (unused at another Tyson plant) which is intended to aid in solids removal. However, the BOD is too high for adequate waste treatment.

The wastewater plant at present does not meet the permitted BOD limits. Therefore, any increase in production would put the plant further out of compliance. The treatment plant as operating could easily meet a 20-20 criteria for BOD and TSS if the poultry plant waste was not allowed in this system. Also, the company is obtaining an unfair advantage over other poultry processors by not having to treat their waste. The City will not force the industry to comply with industrial pre-treatment regulations as they fear financial and political reprisal. Therefore, an administrative order is the minimum effort which should be considered.

Replying to this report, the mayor of Green Forest reported to the EPA that Edmondson was mistaken about the prospects of greater loads from Tyson and Tyson was taking steps to improve its effluent so that in spite of the increased production, no greater loading would be placed on the plant.

Reports indicated however, that the effluent at Tyson did not improve, even deteriorating after Edmondson's inspection.

When Jewell Wise, wastewater superintendent at the Green Forest plant, was asked why he had not exercised his authority under city ordinance and cut Tyson off to avoid violating the City's permit, he responded: ". . .You know what would have happened to me if I'd went and done it, don't you?"
On August 4, 1980, almost eighteen months after Edmondson's inspection, the EPA notified the mayor of Green Forest that the limitations of the city's permit were not met during the period from January through June of 1980. The notification continued:
Those violations are subject to enforcement action as provided by the Clean Water Act. You must take action to eliminate or prevent the recurrence of the violations noted above.
We will place a report of these violations in your file and will use this information to determine the appropriate action to take in the event of future violations .… We are especially concerned about the massive increase in BOD-5 over the last year.
The EPA dispatched Robert Reeves, a senior environmental engineer to inspect the city's sewage treatment plant and ascertain the reason for its inability to meet treatment criteria. In his report filed September 12, 1984, Reeves concluded:
The city's plant was being overloaded, both hydraulically and from a BOD treatment standpoint;
it was designed to handle an effluent of not more than 400 BOD-30TSS;
Tyson's waste greatly exceeded these limits;
the plant was designed to handle no more than 4,170 pounds of BOD per day and that if Tyson's waste was appropriately pretreated, the plant could achieve secondary standards of treatment;
Tyson's waste flow represented 82.5% of the total loading on the plant and ranged from 500 to in excess of 1,000 MG-LBOD in concentration, with average monthly loading up to 12,760 pounds per day or roughly three times the design capacity of the plant; and
peak loading could top 17,000 pounds per day.
In addition to overloading the city's sewage treatment plant, Tyson continued to dump waste in the land area east of Green Forest by pumping sludge into tanker trucks. The trucks would then spray distilled, liquefied materials on the ground. Some of this sludge dumping was being done in close proximity to the city's water supply (Henderson Springs) which, by that time, had also become the water supply for some of the plaintiffs and the hoped for water source for all citizens who had lost their ground water east of the city. In addition, Tyson was also dumping in areas which had been designated by the State Health Department as an imminent health threat zone, thereby provoking even more serious damage.

In 1970, Tyson processed approximately 300,000 pounds of chickens per day. Wastewater treatment plant violations continued. Then in 1984, Tyson's production changed from a "cut up operation" to a "deboning" procedure. Approximately 700,000 pounds of chicken per day were processed. Waste water contamination increased proportionately.
In the same year, the Arkansas Department of Health informed the city that wells in the vicinity of the sinkhole were being affected, and that these affected areas should be provided with city water.
Tyson continued to overload the system without any pretreatment, and the city continued to receive periodic warnings from the environmental agencies regarding permit violations. Thus, because Tyson never pretreated its waste to produce an effluent compatible with the wastewater treatment plant's design, the plant never achieved a quality effluent that would meet minimum safety and health requirements.
Louis Williams, Tyson's environmental engineer, observed that during this period:
1. he was aware of the prohibition against interfering with and overloading the wastewater treatment plant;
2. he was aware the City was having difficulty meeting its permit limits;
3. the technology to pretreat waste from such a facility existed in 1974 when the city's plant was built;
4. he had calculated the overload on the city's plant;
5. he had calculated the cost of pretreating Tyson's waste before loading it into the city's plant.

Tyson Foods, Inc., had full knowledge that the ponds, wells, streams, the fresh mountain water indigenous to the area was being polluted--rendered septic by Tyson's overloading the city sewage plant and by failing to pretreat the waste from the chicken processing operations.
Tyson also knew that technology had existed for over a decade to right this wrong being inflicted upon the area's people. Yet Tyson's excessive loading on the wastewater treatment plant continued to increase.
Pat Magner, a licensed wastewater treatment plant operator and city employee, became so concerned that he went over the head of Jewell Wise, the superintendent, and complained directly to the mayor and the city council.
There was no doubt that the families living in this area east of Green Forest, some 134, were having their rights violated, and so they petitioned state and federal agencies for relief. They petitioned and appeared repeatedly before the city council of Green Forest. Responsible federal and state regulatory agencies made inspections, wrote letters, and sounded alarm, but nothing effective was done to bring relief to these citizens, nor to compensate them for the depreciation and loss of the use of their property. They were having to haul water. Their quality of life was infringed upon. The right to their homes and land was being violated.

When all of their efforts to correct the situation came to naught, they finally questioned:
"Can we find a remedy in law?"
"Can we find a David to fight Goliath?"
"Can we find a lawyer who will tackle the powerful and influential Tyson Foods, Inc.?"
"If we find a lawyer, will he (or she) be willing to take up our cause on a contingency fee, that is, agree that if we do not make a recovery, they will not be paid?"

Lawyers were found to take the citizens' cause to court. They came from three separate firms: James Bruce and Phillip H. McMath, from The McMath Law Firm, P.A., Little Rock, Arkansas; James G. Lingle, Lingle & Lingle, Rogers, Arkansas; and Samuel E. Ledbetter, now with the McMath Law Firm, Little Rock.
After extensive study and preparation, the attorneys on behalf of the aggrieved citizens, filed a suit on March 3, 1987, against Tyson and the City of Green Forest under the Clean Water Act (33 U.S.C. §1365(a) et seq.; 28 U.S.C. §1331, 2201) and their rights under common law.
Belatedly, some six months later, on September 28, 1987, the EPA that had been making inspections and filing reports over the years, filed suit against Green Forest. The citizens moved to have the cases consolidated, or that they be permitted to intervene in the EPA suit. This motion was denied. Then, on the eve of trial in the citizens' action, the EPA's suit against the city was settled for a small fraction of the penalty that could have been assessed.
Prior to EPA's action, on May 19, 1987, James Blair, Tyson's General Counsel, wrote Dr. Ben Salzman, Director of Arkansas Department of Health, who had expressed concerns over the land application of sludge in the vicinity of Henderson Springs, the City's drinking water source. In that letter, Mr. Blair evidenced Tyson's corporate mindset and political power when he stated:
It seems to me that it is time to have a major meeting in the Governor's office with the Governor's staff and get the turf problems ironed out so that the delays that cause us so much trouble now can be eliminated. I am, by copy of this letter, advising the Governor's Chief of Staff that we would be more than happy to attend a peace settlement between the agencies--my understanding is that we are going to, at this point, transfer some of the Green Forest work load to our Texas and Alabama plants so that we can voluntarily quit spreading on the Chaney Farm to show our good faith, even though we have a legal permit to do that, and even though we cannot find any authority that your Department has to request us not to do it.

The citizens' suit filed on March 3, 1987, apparently gave Tyson second thoughts about its land application of sludge in the Carroll County area. This was the first tangible sign that Tyson was feeling a need to alter its mode of operations in North Arkansas.
The citizens' trial against Tyson and the city began April 4, 1989, and lasted just over a month, concluding on May 12, 1989. A verdict was returned by the jury against Tyson for money damages and Tyson was found guilty of forty-three (43) Clean Water Act violations. The city was not found liable.
Both parties, Tyson and the citizens, appealed to the United States Eighth Circuit Court of Appeals. The judgment on behalf of the citizens for money damages against Tyson was affirmed.
The citizens in their complaint had asked for punitive damages against Tyson. The trial judge granted a summary judgment on behalf of Tyson on the punitive damage issue. The trial judge based his opinion and judgment that Tyson had not intended to injure the citizens. On appeal, the Eighth Circuit Court reversed the trial judge. On the issue of punitive damages, the Eighth Circuit Court of Appeals stated:
In this case, the fact that Tyson may not have intended to "punish" the citizens is not dispositive of the punitive damages issue. There was evidence from which the jury could have inferred that Tyson knew the risk involved in drinking water because of the chicken operations, and yet, Tyson acted for years with indifference to that risk. [Emphasis added.]

It is significant that the citizens brought suit against Tyson and the city under the Clean Water Act and the common law. It is significant because there is a movement to eliminate the common law of the respective states and have the common law of the state pre-empted by federal legislation, rules, or regulations and to eliminate the right of trial by jury in civil cases.

The right to bring suit for an injury under the common law and the right of trial by jury are one of the oldest remedies provided by English and American law. Common law has long been the vehicle for the protection of ordinary landholders against the more economically powerful, who operate their land to the detriment of their adjoining neighbors.

In a previous case (Whalen v. Union Bag and Paper Company, 101 N.E. 805 (1913)), the court entered an injunction against a pulp mill employing hundreds of persons and representing a substantial one million dollar investment, which was polluting the waters of a downstream neighbor. The actual damages the jury calculated at $312 per year. The court of appeals rejected the defendant's claim that the actual injury was small. It stated:
Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his little property while giving it to those already rich. (Emphasis added.)

It has, historically, been the function of the common law to reconcile the differences between public interests and private rights. In the Tyson case, the wastewater plant was owned and operated by Green Forest, but the principal polluter using the facility was Tyson. The fact that the property was not owned by Tyson would not deter, under the common law, relief being granted to the injured landowners.
In New York v. Schenectady Chemicals, Inc., a case tried in 1983, the court approved the application of a public nuisance doctrine against the generator of waste, even though the defendant did not own the premises constituting the nuisance. The court in Schenectady held:
The common law is not static. Society has repeatedly been confronted with new inventions. . .that have imposed foreseen and unforeseen dangers upon society. (Emphasis added.)

What we have seen in the case of "Citizens vs. Tyson" is a further dramatic illustration of the function of our justice system. These citizens spent over ten years in an effort to rectify the situation and to get relief. They sought help from the state and federal agencies. No help was forthcoming. These citizens, having been deprived of the use of their property and having their way of life disturbed and disrupted finally went to court and presented their case to a jury. They challenged Tyson, Inc. By bringing suit in court, this malady was corrected and Tyson was restrained from further damaging the lives and property of these people--JUSTICE WAS DONE.

There is no judicial system in the world that matches America's in providing an opportunity for redressing grievances and righting wrongs in our society. Our country grants to every wronged citizen with a meritorious claim the right to the pursuit of justice/

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1 Harrison Times, December 17, 1984