Tillery seeks raw water data from IEPA to support claims; Defense says evidence should have existed before lawsuit was filed

Steve Korris Jan. 5, 2012, 9:59am



BENTON – Two years after Stephen Tillery filed suit alleging weed killer atrazine contaminates Greenville's drinking water, he has begun to look for proof.

In December, he told U.S. Judge Phil Gilbert that he submitted a freedom of information request to the Illinois Environmental Protection Agency for Greenville.

"Plaintiffs requested from the IEPA all documents containing water monitoring data for Governor Bond Lake, Greenville's source of raw water," he wrote.

He wrote that he submitted a similar request to Kansas regulators for another client, the city of Marion, Kan.

He indicated that he submitted the requests in response to summary judgment motions of defendant Syngenta Crop Protection Services.

He moved to defer consideration of the motions, which challenge the standing of Greenville and Marion for failure to show an injury.

"Plaintiffs are still in the process of discovering facts that are relevant to, perhaps even dispositive of, Syngenta's motions for summary judgment," Tillery wrote.

He wrote that all 22 plaintiffs conducted an independent monitoring program over the past year.

"Plaintiffs plan to continue their monitoring program in 2012, while discovery is ongoing," he wrote.

"The results and analysis of this testing will be disclosed to Syngenta along with plaintiffs' expert disclosures in July 2012, at the latest," he wrote.

Christopher Murphy of Chicago answered that water suppliers can recover only for a response to a specific and imminent threat of atrazine.

He wrote that all available data for Greenville and Marion shows negligible amounts that do not even pose a remote risk.

"Plaintiffs should not be permitted to take additional discovery in a speculative effort to find more raw water data because they should have had evidence sufficient to demonstrate that they suffered an injury in fact before filing suit," Murphy wrote.

"Plaintiffs should already have in their possession atrazine testing data sufficient to support those claims."

He wrote that they presented no facts suggesting either state had any raw water data.

"It is pure speculation that any third party would have any additional raw water data for the Greenville and Marion water sources that were not already in the possession of Greenville and Marion," Murphy wrote.

"Notably, while admittedly testing their raw water sources over the past year, plaintiffs failed to come forward with any evidence of raw water samples that posed a risk of an MCL violation to justify continued sampling.

"If plaintiffs are unable to come forward with any of their own raw water testing data to establish an injury in fact, they should not be granted any more time to continue searching for something they should have obtained before filing suit.

"If Greenville and Marion had truly been concerned at any time as to the atrazine level in their raw water, they would have voluntarily done regular raw water testing, which neither of them ever did."

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