Syngenta wants declaratory relief claim dismissed in federal atrazine case

Ann Maher Oct. 13, 2011, 9:10am



Syngenta Crop Protection is seeking to dismiss a claim for declaratory relief in a federal class action lawsuit over the herbicide atrazine, arguing that only regulatory agencies can determine the weedkiller's safety.

Plaintiff's attorney Stephen Tillery, who represents 22 public and private water suppliers in Illinois, Missouri, Indiana, Ohio, Iowa and Kansas, brought the case against Syngenta last year. The plaintiffs claim atrazine contaminates their water supplies at any level of concentration.

In a second amended complaint, Tillery added a claim for declaratory relief, seeking judicial determination that atrazine is unsafe at any level.

The Environmental Protection Agency, however, has determined that atrazine is safe in water up to three parts per billion.

The federal case is similar to an earlier class action Tillery filed in Madison County on behalf of Holiday Shores Sanitary District, which is still ongoing.

In an Oct. 11 motion in the federal case, attorney Kurt Reeg of St. Louis, for Syngenta, wrote in part that the claim for declaratory relief should be dismissed because it was in the parallel Madison County case.

"The first Holiday Shores judge, Judge (Daniel) Stack, granted in part and denied in part, the defendants' original motion to dismiss that matter," Reeg wrote. "Notably, Judge Stack dismissed the prayers for declaratory relief asserted by the plaintiffs in Holiday Shores."

Reeg also wrote that the claim for declaratory relief is duplicative of plaintiffs' trespass and nuisance claims and that the plaintiffs improperly seek to declare the rights of potential future litigants.

He wrote that plaintiffs are furthermore attempting to "usurp the primary jurisdiction of the EPA through their declaratory claim."

"Only the EPA and equivalent state regulatory agencies can make such a determination," Reeg wrote in a memorandum in support of his motion. "And they have not. Therefore, on its face, Plaintiffs' claim for declaratory relief fails to state a claim."

The Madison County case, which seeks relief for Illinois-only plaintiffs, is presided over by Circuit Judge William Mudge. Stack retired last year.

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