Stack allows atrazine class actions to go forward, but leaves door open for defendants

By Steve Gonzalez | Jul 8, 2008

Six proposed class actions against major chemical manufacturers will be allowed to continue after surviving motions to dismiss filed nearly 30 months ago with Madison County Circuit Court Judge Daniel Stack.

Stack issued a 24-page order July 7 after holding the cases under advisement since 2006.

Defendants Sygenta, Drexel, Dow, United Agri Products, Supcan Agro and Makhteshinm Agan, filed 5/2-615 and 5/2-619(a)(9) motions to dismiss arguing plaintiff Holiday Shores, a local water district, lacked standing to bring the class action claims.

Holiday Shores Sanitary District filed the suits in 2004 alleging atrazine made by the defendants breaks down into "degradant" chemicals which are hazardous to humans. Among other things, Holiday Shores wants to be fitted with a new charcoal system to filter out atrazine.

They are seeking to represent a class of other Illinois water districts.

Courtney Buxner and Stephen Tillery of Korein Tillery in St. Louis, along with the Dallas law firm Baron & Budd, represent Holiday Shores.

Atrazine, which the U.S. EPA has declared allowable three parts per billion in drinking water, is the most commonly applied herbicide used by corn growers.

A report issued by the U.S. EPA on June 21, 2006, concluded that the cumulative risks associated with triazine herbicides pose "no harm that would result to the general U.S. population, infants, children or other...consumers."

Atrazine also is the number one seasonal contaminant found in surface drinking supplies in the nation. It usually shows up in low levels in the spring and summer after farmers apply it to kill weeds rather than plowing weeds.

One of the arguments defendants' presented held that Stack should defer the case to the U.S Environmental Protection Agency (EPA) under the primary jurisdiction doctrine.

But Holiday Shores countered that defendants advanced similar arguments when they removed the cases to federal court. The cases ultimately were remanded to state court.

Stack agreed with Holiday Shores on primary jurisdiction by pointing to the decision by U.S. District Judge Michael Reagan who remanded the cases back to state court for further proceedings.

In his order, Reagan said, "Congress does not require uniformity and consistency in drinking water standards; rather, Congress requires that the states adopt and enforce laws or regulations respecting drinking water that do not exceed the maximum contaminant levels established by the EPA."

Stack also denied the defendants argument that Holiday Shores lacked standing to bring the case ruling that it has alleged sufficient injury to have standing and that all well-pled facts must be taken as true at this point in the proceedings.

He also denied a motion to dismiss based on causation.

According to Stack, Holiday Shores alleges defendants caused water supply contamination and that the defendants named in the complaint are liable under each count of the complaint.

"Illinois law requires no more of Holiday Shores," Stack wrote, noting that a plaintiff must simply allege facts that, if proved, would entitle relief.

The defendants also wanted Stack to dismiss the complaint that alleged trespass arguing they did not control the atrazine at the time it entered Holiday Shores property.

Stack ruled Holiday Shores adequately stated a cause of action for trespass, therefore it cannot be dismissed.

He also refused to dismiss counts for negligence and strict product liability stating Holiday Shores properly pleaded its complaint.

Stack did, however, point out that defendants' arguments may be subject to a summary judgment motion.

While Stack mostly ruled for Holiday Shores, he did knock out a portion of the complaint that asked for punitive damages.

"Plaintiff's Prayers for Relief asking for punitive damages are premature," Stack wrote.

Stack said that after discovery, Holiday Shores can petition him to amend its complaint to include punitive damages.

At the end of his order Stack added, "Many of the plaintiff's prayers for relief seek either Declaratory Judgment or an order of this court requiring the defendants to maintain the 'charcoal filtration system in the future'.

"Without inferring that this court is finding that the plaintiff is entitled to any relief, those prayers cannot be allowed under any of the circumstances alleged in the complaint.

"This court finds that the imposition of a Declaratory Judgment would not conclude nor substantially assist in the ultimate conclusion of the litigation."

He also wrote, "The request to order the defendants to act affirmatively in the future sounds in mandatory injunctive relief.

"Not only would injunctive relief be required to go before the IEPA Board prior to being filed in the Circuit Court, but the plaintiff has alleged several counts and prayers for relief that indicate 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."

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