Either the U.S. Environmental Protection Agency measures the health risk in weed killer atrazine or Madison County Circuit Judge Barbara Crowder does.
In six proposed class actions before Crowder, Stephen Tillery of St. Louis and associates at Baron and Budd in Houston seek to remove all atrazine from raw water supplies in Illinois.
On behalf of Holiday Shores Sanitary District, they challenge an EPA standard finding atrazine safe at three parts per billion.
They claim atrazine contaminates water at any level.
Alleging trespass and nuisance, they seek abatement orders that would require atrazine makers to install treatment systems and maintain them forever.
In a new motion to amend a five-year-old complaint, they propose to add the cities of Carlinville, Fairfield, Flora, Hillsboro and Mattoon as plaintiffs.
"Each of these plaintiffs asserts identical legal claims as those asserted by Holiday Shores Sanitary District," Tillery wrote on Aug. 25.
Tillery wrote that each city suffers stigma and loss of value.
He wrote that he plans to represent up to 99 cities and water districts.
Though he limits the suit to Illinois, Baron and Budd stands beside him in anticipation of a judgment its lawyers could brandish for leverage in courts nationwide.
They started the litigation in 2004, against Sipcam Agro USA, Drexel Chemical, Syngenta Crop Protection, Growmark, Dow Agrisciences and Makhteshim Agan of Israel.
Courtney Buxter of Korein Tillery wrote that atrazine caused deformities in amphibians.
Buxter linked it to fetal death in humans.
"Independent scientific researchers have begun to unveil the impending devastating effects of this toxic chemical," Buxter wrote.
Buxter proposed a class action for all districts established pursuant to the Illinois Public Water District Act that suffered atrazine contamination "at any measurable level."
Buxter proposed to start the class period when defendants first placed atrazine into the stream of commerce, which happened about 50 years ago.
Buxter sought an order declaring that atrazine harms humans at three parts per billion.
For Holiday Shores, Buxter requested a new filter system, future maintenance and improvement, a remedial plan for lake and groundwater, compensation for lost market value and stigma, compensation for lost commercial use, and punitive damages.
Buxter alleged strict liability under Illinois law that prohibits water pollution by discharge of contaminants on water or land.
Buxter claimed defendants failed to perform research or warn plaintiffs.
At first Chief Judge Edward Ferguson assigned the cases to four judges, but later he assigned all six to Circuit Judge Daniel Stack.
The suits languished for years, with no litigation at all for 18 months.
When Stack announced his retirement last month, Chief Judge Ann Callis transferred the suits to Crowder.
Suddenly Tillery and his Texas teammates threw all their weight behind them.
To add five cities as plaintiffs and make room for more, their amended complaint would redefine the class they seek to certify.
"Clearly, HSSD intended to bring a claim on behalf of a class of water providers of which it was a member," Tillery wrote in a Sept. 17 brief.
"This change in the class definition has not changed the core operative facts of the complaint – that defendants have manufactured, sold and distributed atrazine, which caused the contamination of the raw water supplies of HSSD and other water providers throughout the state of Illinois," he wrote.
He wrote that the nuisance plaintiff seeks to abate is located throughout Illinois and that venue is proper in Madison County.
"Defendants market atrazine in Madison County, atrazine is applied in Madison County, and the public water supply has been damaged in Madison County," he wrote.
He wrote that class members draw water from rivers and lakes throughout the state.
He wrote that the largest river, the Mississippi, flows contiguous to Madison County.
"Defendant has not and cannot show how the addition of five class members would make the case unmanageable or unduly burdensome to the court or the parties," he wrote.
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U.S. Environmental Protection Agency (EPA)