Tillery's atrazine suits blame producers for all water pollution

Steve Korris Oct. 8, 2009, 3:12pm



Stephen Tillery of St. Louis and his band of small Illinois cities have figured out how to blame producers of weed killer atrazine for all water pollution.

Tillery's new version of old suits against atrazine makers allege that it causes greater harm to humans when it mixes with nitrates and "other chemicals" in water supplies.

Tillery hasn't filed his new complaints, because Madison County Circuit Judge Barbara Crowder hasn't ruled on his motion for leave to amend the old ones.

On Oct. 2, defendants urged Crowder to deny the motion.

"The proposed seconded amended complaint is premised on an entirely new scientific theory," Robert Shultz of Edwardsville wrote for Growmark.

"Atrazine and nitrates are significantly different products, used for different purposes, applied at different times, often by different people," he wrote.

Crowder plans hearings in all six suits on Oct. 28 and 29.

Tillery filed suits in 2004 against Sipcam Agro USA, Drexel Chemical, Syngenta Crop Protection, Growmark, Dow Agrisciences, and Makhteshim Agan of Israel.

On behalf of Holiday Shores Sanitary District, he challenged a federal standard that finds atrazine safe in water at three parts per billion.

Claiming it contaminates water at any level, he sought abatement orders that would require atrazine makers to install treatment systems and maintain them forever.

He connected atrazine to deformities in amphibians and fetal death in humans.

He claimed that "researchers have begun to unveil the impending devastating effects of this toxic chemical."

He proposed to represent all districts established pursuant to the Illinois Public Water District Act that suffered atrazine contamination.

He sought an order declaring atrazine harmful to humans at three parts per billion.

For Holiday Shores he sought new filters, future maintenance and improvement, and a remedial plan for lake and groundwater.

He sought compensation for lost market value, stigma and lost commercial use.

He sought punitive damages.

Scott Summy of Baron and Budd in Houston, about the biggest plaintiff firm in the nation, appeared 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.

Last year Stack dismissed claims for declaratory and injunctive relief, and he denied an order requiring defendants to maintain charcoal filtration in the future.

He allowed claims of nuisance and trespass to proceed.

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

For a new judge, Tillery proposed new suits.

He moved to add Carlinville, Fairfield, Flora, Hillsboro and Mattoon as plaintiffs.

None of them fit his class definition, but that didn't deter Tillery.

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

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

Shultz answered that the new complaints constitute surprise and prejudice.

He argued that Tillery's cities sought relief Stack denied.

He wrote that they couldn't maintain property damage suits in Madison County.

"None of the lakes or rivers from which the proposed new plaintiffs draw water is located in Madison County," he wrote.

"For more than a century, it has been a fundamental principle of Illinois law that claims for damage to real property must be pursued in the county in which the property sits," he wrote.

He asked, "Why should the citizens of Madison County be asked to shoulder the burden and expense of protecting the property rights of the citizens in distant counties who are perfectly capable of defending themselves?"

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