BENTON – Stephen Tillery proposes that Corn Belt communities completely remove weed killer atrazine from water supplies not because they must but because they can.
"The health risks associated with atrazine make complete removal reasonable, not mandatory," he wrote to U.S. District Judge Phil Gilbert on Aug. 15.
He wrote that declaring it unsafe at any level wouldn't undermine a national standard finding it safe up to three parts per billion.
"Plaintiffs are not seeking to impose a stricter maximum contaminant level standard on water providers through a declaration that atrazine is unsafe at any level," hewrote.
"They 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 their customers and to get reimbursed for the associated expense," he wrote.
He represents the city of Greenville, 14 other local governments, and four private water suppliers proposing a class action against Syngenta Crop Protection.
The suit covers Illinois, Missouri, Indiana,Ohio, Iowa and Kansas.
Tillery pursues a parallel suit in Madison County circuit court, for Illinois only.
In July, he asked Gilbert for leave to amend the federal complaint.
"Syngenta sells its weed killer expecting that plaintiffs' customers will eventually drink it," he wrote.
"Because Syngenta caused atrazine to contaminate their water supplies, plaintiffs believe Syngenta must reimburse them the costs associated with removing it," he wrote.
"Accordingly, plaintiffs ask Syngenta to pay all compensatory and punitive damages resulting from past and present atrazine contamination," he wrote.
He wrote that he would add a claim for declaratory judgment of their rights and Syngenta's obligations when atrazine contaminates supplies in the future.
"This declaration of rights is separate from and in addition to plaintiffs' legal right to recover compensatory and punitive damages for past contamination," he wrote.
"Plaintiffs cannot responsibly incur substantial additional treatment costs without knowing whether Syngenta will be required to compensate them for those costs," he wrote.
On Aug. 8, Syngenta opposed the new claim as purely speculative.
"Plaintiffs seek an open checkbook for future costs but do not know what those costs are, whether they will actually be incurred, and whether they will even be related to atrazine," wrote Kurtis Reeg of Clayton, Mo.
"This is not a contract issue where a declaration would make sense and end the dispute," hewrote.
He wrote that parties who believe the Environmental Protection Agency standard to be wrong are afforded judicial review in the District of Columbia.
Tillery wrote a week later, "Because plaintiffs are entitled to a declaration of their legal rights when Syngenta's atrazine contaminates their water supplies in the future, justice requires that they be allowed to amend their complaint."
"Every plaintiff has had and continues to have Syngenta's atrazine in its raw water," he wrote.
"Unless Syngenta stops selling atrazine (it has no intention to), atrazine's environmental fate and transport characteristics guarantee that plaintiffs will have Syngenta's atrazine in their raw water again in the future."
Contamination lies in the eye of the beholder, for none of the six states reported atrazine violations in their current water quality compliance reports.
Iowa posted a table showing zeroes in all columns for atrazine.
Ohios howed that among 1,746 suppliers which tested tap water for atrazine and 590 which tested raw water, not one exceeded 1.5 parts per billion.
Missouri's report stated, "In the recent past, several reservoirs that served as public drinking water reservoirs exceeded drinking water standards for atrazine or health advisory levels for cyanazine."
It stated, "Currently, however, there are no actively used drinking water reservoirs for which atrazine or cyanazine exceeds these levels."
"This is due in part to local watershed management programs aimed at reducing herbicide runoff.
"Local watershed projects have resulted in significant reductions of atrazine levels in targeted drinking water reservoirs, in certain cases bringing them into compliance with water quality standards."