Syngenta urges judge not to rule on atrazine's safety; Only regulators can make the determination, brief says

Steve Korris Aug. 11, 2011, 10:39am



BENTON – Syngenta Crop Protection urges U.S. District Judge Phil Gilbert to resist Stephen Tillery's plea to declare weed killer atrazine harmful in any concentration.

On Aug. 8, Kurtis Reeg of St. Louis opposed a July 26 motion to amend a complaint Tillery filed last year on behalf of public and private water suppliers in six states.

"Through the guise of declaratory relief, plaintiffs are seeking a judicial determination that atrazine is unsafe at any level," Reeg wrote.

"Only the Environmental Protection Agency and equivalent state regulatory agencies can make such a determination," he wrote.

EPA finds atrazine safe in water up to three parts per billion.

Reeg wrote that "parties who really believe that judgment to be wrong are afforded the right to federal judicial review in the District of Columbia circuit."

He wrote that Tillery's amended complaint would seek "complete removal."

"Plaintiffs seek an open checkbook for future costs but do not know what those costs are, whether they will actually be incurred, and whether they will even be related to atrazine," Reeg wrote.

"It is sheer speculation whether any of the plaintiffs will have atrazine in their raw or finished water in the future.

"This is not a contract issue where a declaration would make sense and end the dispute.

"It is a claim for damages related to a product.

"A person injured by a defective product does not bring a claim for tort damages and an additional claim for declaratory relief seeking to have the product manufacturer declared liable for his future expenses.

"Whether plaintiffs will test or be required to test for atrazine at all in the future is unknown.

"And it is unknown whether plaintiffs will need to remove atrazine from their water in the future, assuming each individual plaintiff even has any atrazine at all in its raw water.

Tillery represents water suppliers in Illinois, Missouri, Iowa, Kansas, Indiana and Ohio.

They sued Syngenta Crop Protection, a North Carolina business, and Swiss holding company Syngenta AG.

Syngenta AG challenged Gilbert's jurisdiction, and he wrote in July that he would decide the matter as soon as possible.

Syngenta faces a similar suit that Tillery filed in Madison County in 2004, on behalf of Holiday Shores Sanitary District and a class it represents.

Circuit Judge Daniel Stack denied declaratory relief to Holiday Shores in 2008, finding he couldn't require Syngenta to maintain a charcoal filtration system in the future.

He wrote that injunctive relief would have to go through Illinois EPA first.

He wrote that the complaint indicated an adequate remedy at law.

"Even future maintenance of the filtration system, if warranted by the proofs at trial, could
be effectively provided for by the calculation of present value of future damages," Stack

He denied Syngenta's motion to dismiss product liability claims, which remain open before Circuit Judge William Mudge.

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