West Virginia Supreme Court Approves $93 Million Settlement of Agent Orange Plant

The West Virginia Supreme Court of Appeals upheld a $93 million settlement in an environmental class action lawsuit over a chemical used in Agent Orange. The settlement, initially approved 11 months ago, includes a 30-year medical monitoring plan for people who lived near Monsanto’s agent orange plant.

It will also collect a $21 million primary fund, which will pay for the testing which will be done on any eligible members.

Further, the settlement provides up to $63 million in additional funding, made available over the duration of this program.

Additionally, the settlement provides for up to $9 million to professionally clean the homes in the Nitro area, the area where the Monsanto plant was located.

This settlement resolves all claims in pending litigation, as well as all class actions filed in West Virgina.

The court, which voted 4-1 in favor of the deal, found “no substantial question of law” and “no prejudicial error” in the Putnam County Circuit Court’s initial ruling.

This Monsanto plant produced trichlorophenol. More specifically, 2,4,5 trichlorophenoxyacidic acid (commonly referred to as 2,4,5 T) was used by the military during the Vietnam War to make Agent Orange. According to the complaint, the Monsanto plant disposed of these waste materials in an illegal manner, using a continuous process of open “pit” burning.

The residents in the area complained that Monsanto’s burning process was “dusty” and “haphazard,” releasing 30,000 pounds of the toxin into the air. It is estimated that around 4,500 homes are located in the possible remediation area.

When questioned by regulatory authorities, Monsanto, which has denied the burning practice, described it instead as an “incineration” process.

Monsanto operated the Nitro plant until 1995, when it merged with the Dutch company Akzo Nobel, and began operating as Flexsys America Inc.

In 1997, Monsanto renamed a subsidiary as Solutia Inc. and the Nitro plant was distributed to Solutia. The plant eventually closed in 2004.

In the Supreme Court’s decision, they said, “in sum, we believe the record demonstrates that the settlement is based on objective evidence and was reached only after extensive discovery. The settlement results from zealous, rigorous advocacy by both parties. Therefore, we cannot conclude that the circuit court abused its discretion in finding it to be fair, adequate, and reasonable.” They continued, “petitioners simply draw unsubstantiated conclusions because the ultimate settlement was not as beneficial as they believed it could have been.”

For more information, contact a Gacovino Lake attorney at 1-800-246-HURT (4878).

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