Tillery would add 66 new class members to atrazine suits

Steve Korris Oct. 2, 2009, 2:18am


Stephen Tillery of St. Louis leads 40,000 small town residents into economic battle against makers of weed killer atrazine, and suspense builds as his army grows.

Tillery, who moved in August to add five cities as plaintiffs in Madison County class actions against atrazine makers, now aims to introduce many more plaintiffs.

New complaints would identify 66 new class members, according to defense lawyers who received copies on Sept. 16.

Tillery has not filed the new complaints in the public record.

According to Geoffrey Bryce of Chicago, on behalf of Sipcam Agro USA, the new complaints would dramatically change the class definition and add new chemicals.

New complaints would add a claim that atrazine in combination with nitrates is more toxic than atrazine itself, Bryce wrote on Sept. 18.

Tillery started the litigation in 2004 on behalf of Holiday Shores Sanitary District, challenging a federal standard that finds atrazine safe in water at three parts per billion.

Alleging that it contaminates water at any level, the district seeks abatement orders that would require atrazine makers to install treatment systems and maintain them forever.

The district filed separate suits against Sipcam Agro USA, Drexel Chemical, Syngenta Crop Protection, Growmark, Dow Agrisciences, and Makhteshim Agan of Israel.

In the suits the district connects atrazine to deformities in amphibians and fetal death in humans.

The district claims that "independent scientific researchers have begun to unveil the impending devastating effects of this toxic chemical."

It seeks to represent all districts established pursuant to the Illinois Public Water District Act that suffer atrazine contamination at any measurable level.

The district seeks orders declaring atrazine harms humans at three parts per billion.

And, it asks for new filters, future maintenance and improvement, a remedial plan for lake and groundwater, compensation for lost market value and stigma, compensation for lost commercial use, and punitive damages.

Scott Summy of Baron and Budd in Houston, about the biggest plaintiff firm in the nation, appears on the complaints and remains in the litigation.

The suits languished for years in the court of Circuit Judge Daniel Stack, with no litigation at all for 18 months.

This August, after Stack announced his retirement, Chief Judge Ann Callis transferred the suits to Circuit Judge Barbara Crowder.

Tillery moved to add Carlinville, Fairfield, Flora, Hillsboro and Mattoon, with a combined population close to 40,000, as plaintiffs.

"Each of these plaintiffs asserts identical legal claims as those asserted by Holiday Shores Sanitary District," he wrote.

The cities don't fit the original class definition because they weren't established under the water district act, so Tillery must change the definition.

A new definition won't change the core fact that atrazine contaminated raw water supplies throughout Illinois, he wrote in a Sept. 17 brief.

As suspense builds over the size of Tillery's class and the magnitude of his claims, suspense also builds over jurisdiction.

Enough amendments can turn an old complaint into a new one for purposes of federal law that steers most new class actions to federal courts.

To avoid removal to federal court, Tillery asked Crowder for an order finding that his amendments relate back to the original complaint.

"This case is, and always has been, a proposed class action concerning atrazine contamination of drinking water throughout the state of Illinois," he wrote.

A Mattoon city council special ordinance of Jan. 6 allowed its mayor, treasurer and attorney to take steps to sue or join any pending suit.

The ordinance says "the City of Mattoon has and continues to experience the occurrence of Atrazine in its water supply."

It also says "the City believes that it has and will continue to expend funds to limit or reduce the effect of Atrazine on its water sources and supplies.

"The City believes it is appropriate to ask the makers of Atrazine to assume the responsibility for eliminating, reducing or minimizing the effects of Atrazine on the city's water sources and supplies."

The Illinois Farm Bureau has taken a position against the litigation.

Spokesman Dennis Vercler said agriculture has done a lot to reduce atrazine in water supplies. He said atrazine has been thoroughly tested and that this issue "is not a human health issue, it's a farm management issue."

"Courts should abide by federal guidelines which have set up health standards," Vercler said.

Hillsboro is another municipality which has agreed to join in the class actions. City Clerk Dave Booher said the city signed a litigation agreement on Jan. 27. As of press time, he had not provided a copy of the agreement.

Carlinville also has signed onto the litigation.

Public Works Director Mary Beth Bellem said the city's Public Works, Public Lands and Lakes Committee discussed an information packet about the class action suits late last year and saw "no down side" to joining.

"There is no cost to the city at all," Bellem said. "If there was no settlement, there would be no fee. If there was a settlement to pay for the process to remove atrazine, then potentially we'd get a check."

"The makers of atrazine might have to make it safer," she said.

Carlinville Mayor Robert Schwab likened his position as public official and farmer as a "Catch 22."

"I want the best water for people," he said.

Schwab, a member of the Illinois Farm Bureau, also said atrazine is "very beneficial for growing crops."

He said that crops that are not applied with fertilizer and pesticides "don't do as well."

"You lose a lot of crops to pests," he said.

More News