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Atrazine lawsuit reels in farm groups 267334

Senate Ag Committee hears testimony about fallout of atrazine-related suits.Atrazine being looked at again by EPA.Lawsuits targeting the product also reel in farm groups.

David Bennett 1, Associate Editor

October 6, 2010

11 Min Read

Fifty years after its introduction, atrazine is still used by farmers to control weeds. Not only is the herbicide’s longevity surprising, so too, claim farmer groups, is the scrutiny it is under by the EPA.

Only four years ago — and on the heels of a 12-year study — EPA scientists deemed proper use of atrazine acceptable to the nation’s environment. Then, last year, to the disbelief of many in the agriculture sector, EPA administrators claimed another review was necessary.

Now, a peripheral issue regarding atrazine has emerged and caught the interest of farm-state legislators. This was obvious during a Sept. 23 Senate Agriculture Committee hearing where EPA administrator Lisa Jackson was grilled on a variety of controversies the agency is mired in (Senate Agriculture Committee takes on EPA). The point was driven home during Jere White’s testimony as part of the farmer/advocate panel that followed Jackson.

White — who heads both the Kansas Corn Growers Association (KCGA) and Kansas Grain Sorghum Producers (KGSP) — testified that lawyers pushing an atrazine-related class action suit in Illinois had not only subpoenaed the groups he represents but also him personally. The timing of the subpoenas is especially curious, as they were issued the day after White spoke publicly against such legal tactics during a mid-September EPA meeting.

White, who has been deeply involved with atrazine issues for over two decades, was backed during the hearing by Kansas Sen. Pat Roberts who angrily denounced the subpoenas, calling them an attempt to stifle debate.

The following day, Southwest Farm Press spoke with White shortly before he traveled abroad. White told a winding, interesting tale that incorporates science, government bureaucracy, chemical industry consolidation, lawyers fishing and interest group pressures. Among his comments:

To lay the groundwork for what’s happened with what these attorneys, please explain your involvement with atrazine.

“My involvement on the atrazine issue actually predates the (EPA’s) special review.

“There were some water quality concerns that were raised in Kansas back in the late 1980s. Through our association we got involved in working on BMP (best management practices) implementation, trying to figure out what was going on and address concerns. The state formed a pesticide management area to see what could be done about atrazine levels.

“Part of this was predicated on the fact that the EPA was in the process of lowering the standard to 3 parts per million.

“Jump forward to the special review of 1994. I got more heavily involved because of the work we’d done in the late 1980s. I had a little more awareness of the product and the issues associated with it.

“At that time, the major crops typically hadn’t been very involved in pesticide registration issues. The assumption was that the registrants would do what was needed and there just wasn’t a lot of grower involvement…

“So, I helped other states figure out what they should be concerned with and working on with regards to registrations. I also helped them with BMPs and water quality issues relative to pesticides. That was simply because we’d already done some of that in Kansas and it made sense to share since resources were limited.”

The Triazine Network

On the Triazine Network and industry consolidation…

“As an offshoot, in 1995, we decided to form a coalition known as the Triazine Network. It was made up completely of grower groups. Some 30 commodities in over 40 states are represented. Groups like Delta Council, (national and state) Farm Bureaus, state commodity groups and, in a few cases, individual farmers participate.

“There were two goals for the network. Looking back now, some draw the conclusion that it was all about trying to keep EPA on the straight and narrow. However, we needed the EPA to understand how and why we used (atrazine) and why it’s important.

“But we also (were concerned with) the changes in registrant status. Back in the mid-1990s, there was a lot of companies restructuring, merging and other things. Around then, Ciba‑Geigy became Novartis.

“So, because the product was so important to farmers, we knew it was necessary that we not only talk to EPA but also the company, or companies, providing the product. Whenever there was a change in company status — and over the past 15 years Ciba became Novartis and then Syngenta — there were also changes in management and restructuring. We knew that almost every time those changes occurred, people would come into the company in a management role that didn’t necessarily have a history of supporting atrazine. In fact, they could very well have been working for a company with products competing with atrazine.

“We participated in every (EPA) Science Advisory Panel (SAP) meeting since the beginning. I’ve personally participated in every SAP since 1994.

“We focus a lot of our time communicating amongst ourselves. When it seemed the political and activist pressures grew stronger, we took one of their leads and formed a Web site. was (launched) early this year.

“We borrowed from the activists’ bible and recently did an electronic signature letter for (EPA administrator) Lisa Jackson. That was sent earlier this month and it was signed by about 120 farm organizations and about 2,700/2,800 individual farmers. … We want to remind the EPA that there is mainstream agriculture out here and (atrazine) is still an important product despite it being 50 years old.”

Warning shots

During your Senate testimony … you said there had been some warning shots, or alarming things that have occurred, with your groups and others regarding some lawyers and potential class-action suits they’re pushing. Can you talk about that and how it morphed into an actual subpoena for you?

“In their scientific reviews, there are certain points in time when the EPA occasionally makes decisions. Sometimes you think they never make a decision. But occasionally they do.

“In 2003, the EPA issued what they called an ‘interim registration eligibility decision.’ That set the peg in the ground that their scientific review indicated there was reasonable certainty of no harm to continue the registration of atrazine.

“There were some caveats with different monitoring projects and the like. But, basically, there weren’t a lot of substantial label changes for farmers. … Clearly, in 2003, the agency tipped their hand in the direction they would go: to re-register atrazine with a majority of its uses.

“That was finalized in April of 2006. But as far back as 2003, the science looked good and the EPA had worked through some challenges and we were set to go.

“However, in 2004, lawyers filed a suit in Madison County, Ill., for the Holiday Shores Sanitary District. It’s a local water supplier.

“The basis of the lawsuit is that even though they don’t have to treat for atrazine today, they don’t have any incoming water that requires treatment for atrazine, they’re trying to make the case that the EPA standard isn’t good enough. They want to collect for costs and damages, if you will, for the incidental, extremely small amounts of atrazine that may flow into their system. That’s even though they don’t treat for atrazine.

“It’s the activists’ way of saying, ‘We’ll take a run at the courts to do what we couldn’t do through the science and EPA.’


On shopping lawsuits…

“The trial attorneys actually began shopping these lawsuits by going town to town. They’ve since filed a federal lawsuit in Illinois earlier this year. But a few towns in Missouri and Kansas bought in.

“The most egregious one to me is Dodge City, Kan., which gets well water. It doesn’t get any runoff from fields. But the ability to reinvent ‘zero’ occurs every year. (With such sophisticated testing equipment) it isn’t hard to find some trace amount.

“Clearly, we understand what kind of safety factors are in the EPA requirements.

“The cities are being sucked into this because they need money. Attorneys might say, ‘If we can get this done, you’ll have some money to spend. In the meantime, we’ll front the costs for doing this.’ So, the cities aren’t paying anything and the suits’ costs are on a contingency basis.”


On out-of-state subpoenas…

“A couple of months ago, the plaintiff attorneys on the Holiday Shores case began issuing subpoenas to Illinois agriculture groups: Illinois Farm Bureau, Illinois Corn Growers, Illinois Fertilizer and Chemical Association. They want any document mentioning atrazine, Syngenta or its legacy companies, any training Syngenta might have offered, all of that.

“And, at the tail end of this list, was ‘any communication with Kansas Corn Growers, Kansas Grain Sorghum Producers, or the Triazine Network.’

“It was obvious that they were fishing. The irony is they attempted to do discovery on Syngenta for the same things and the court wouldn’t allow it. The court limited discovery to either entities that were involved in official lobbying (for Syngenta) or entities they were actually a member of. So, basically, the attorneys are trying to come through the back door to get what the court wouldn’t allow through the front door.

“A few weeks ago, prior to the mid-September SAP, the attorneys began issuing subpoenas outside of Illinois. Those read like a who’s who of those who had stood up on behalf of (atrazine) at previous SAPs. National Corn Growers got one, Missouri Corn Growers got one along with the Environmental Resource Coalition (that has spoken at SAPs on BMPs and the like) and the American Farm Bureau.”

On the personal subpoena and suspicions on why it was issued…

“At my presentation during the mid-September SAP, I felt like the EPA and SAP needed to know what was happening to people that were exercising their right to participate in the public process. I spoke about that.

“Literally, the next day, my district court here in east-central Kansas received a request for three subpoenas: one for Kansas Corn Growers, one for Kansas Grain Sorghum and one for me, personally. That may be the first personal subpoena they’ve issued.

“Two of the subpoenas say, ‘You will be at your office on Sept. 30 at 10 a.m.’ Not only are they intruding into everything else, they also invite themselves into my office and tell me when to be there.

“The personal subpoena commands me — and it’s worded ‘you’re hereby commanded’ — to appear at the Best Western in Olathe, Kan., at exactly the same date and time. That’s 50 miles away from the offices!

“The list of documents they want is the most absurd, though. It’s two pages of anything you can imagine: all correspondence to and from Jere White concerning Syngenta or atrazine; all e-mails to, from, copying, or blind-copying Jere White concerning Syngenta and/or atrazine; all internal memos concerning Syngenta and/or atrazine; all studies related to atrazine; any raw data on atrazine studies; all notes, reports, analysis or other documents related to atrazine studies; any surveys received from growers or farmers regarding their atrazine or atrazine-containing product use in Illinois (the only thing in 20 categories if items being asked for that even mentions the state where the suit is located); all reports, articles or other documents written by Jere White concerning atrazine or Syngenta; any source information or other documents relied on to write anything; all documents related to presentations; all documents related to persons present at any presentation; any documents evidencing monetary contributions or compensation to me; any documents related to training offered to me by Syngenta; all phone logs, notes and other documents reflecting phone conversations between me and Syngenta, or concerning atrazine; all calendar entries reflecting meetings with Syngenta concerning atrazine; reports disclosing lobbying; all documents related to the Triazine Network, the KCGA , the KGSP and CropLife America.”

White notes the subpoena requests “all” documents — not those just related to atrazine.

“Well, as you can imagine, documents between me and (these organizations) is every damned document I’ve got! It’s everything! I actually had to read the subpoena a few times to get the full scope of what they’re saying. They want every KCGA document that exists.”


On fishing for information versus chilling public debate...

“I believe (Kansas) Sen. Roberts had it right (in his comments during the Senate Agriculture Committee hearing on the EPA). This is about harassment and killing participation — not just with SAPs.

“I guarantee I have nothing of value in the discussion and dispute in the Holiday Shores cases in Madison County, Ill.…

“What’s more, I don’t think the plaintiff attorneys think I do. I could theorize some things, but I don’t think they care about that and probably wouldn’t agree with my theories.

“They want to know not only what you say publicly, but all the discussions that took place before you said it.”

What has your counsel said on this?

“I’m not going to comply with the subpoena because, number one, I’ll be in the Ukraine next week. And I’m not going there to get away from the subpoena — I’m there for business that was planned a long time ago.

“It’s my desire to call this one out as what it is. Yes, we have counsel. This is clearly getting at our rights to associate, our ability to exercise rights to free speech. This is wrong on so many levels I don’t even have the words to say exactly how bad it is. Obviously, we’ll challenge both the timing and the (document) volume.”

About the Author(s)

David Bennett 1

Associate Editor, Delta Farm Press

David Bennett, associate editor for Delta Farm Press, is an Arkansan. He worked with a daily newspaper before joining Farm Press in 1994. Bennett writes about legislative and crop related issues in the Mid-South states.

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