Tillery: Atrazine removal is a common law issue for the Court, not EPA

Steve Korris Nov. 18, 2011, 6:55am


BENTON – U.S. District Judge Phil Gilbert must cleanse water supplies of weed killer atrazine because the Environmental Protection Agency can't, Stephen Tillery argues.

On Nov. 14, the St. Louis lawyer told Gilbert his common law claim for relief against atrazine producer Syngenta Crop Protection doesn't infringe on EPA's jurisdiction.

"The courts, not the EPA, are responsible for adjudicating disputes concerning common law rights," he wrote.

He wrote that EPA has not defined the property rights of water providers.

He wrote that tort claims based on common law are outside EPA's primary jurisdiction.

"EPA regulates the relationship between water providers and their customers" he wrote.

"By contrast, the EPA has no authority over the relationship between polluters and water providers," he wrote.

He wrote that an EPA standard finding atrazine safe up to three parts per billion doesn't grant Syngenta license to contaminate water supplies up to that level.

He wrote that his clients don't challenge EPA regulations or seek to impose a stricter standard on water providers.

"Plaintiffs are merely seeking a declaration that as property owners, they have the right, not the obligation, to completely remove atrazine from the water they serve to customers and to get reimbursed for the associated expense," he wrote.

"Plaintiffs are also not seeking a declaration that atrazine is unsafe at any level," he wrote.

"Instead, they are seeking a declaration that the health risks associated with atrazine make complete removal of atrazine from their raw water reasonable, hence compensable, not mandatory," he wrote.

Tillery sued Syngenta in federal court last year, on behalf of public and private water suppliers in six Midwest states.

He pursues separate claims he filed in Madison County circuit in 2004, on behalf of Holiday Shores Sanitary District.

Both seek to recover past costs of removing atrazine from water supplies.

Tillery amended his federal complaint in September, to add claims for future relief.

Syngenta moved to dismiss future claims, arguing they assumed contamination that might not occur.

Tillery answered that the Seventh Circuit appeals court doesn't require certainty of future injury to establish standing.

"The inherent chemical and environmental properties of atrazine, combined with the consistent track record of actual atrazine contamination of plaintiffs' water supplies, makes future contamination sufficiently certain to create standing," Tillery wrote.

He wrote that according to Syngenta, atrazine contamination creates a temporary nuisance rather than a permanent one.

"According to Syngenta's reading of the law, the plaintiffs must wait, suffer additional contamination, accrue additional treatment costs, and then periodically sue Syngenta to recover those costs," Tillery wrote.

He wrote that according to recent scientific literature, atrazine in drinking water at any level presents a real and unnecessary risk to health.

"As a consequence, plaintiffs want to know that they can exercise their legal rights as property owners to completely remove the atrazine that Syngenta intentionally introduces into their water supplies," he wrote.

Christine Moody, Christopher Hoffmann, Christie Deaton and Michael Klenov, all of Korein Tillery, worked on the brief.

So did Patricia Murphy of Energy, wife of U.S. District Judge Patrick Murphy.

So did Scott Summy, Carla Burke, Celeste Evangelisti and Cary McDougal, all of Baron and Budd in Dallas.

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