West Virginia Record

WINFIELD - A spokeswoman for the state Supreme Court of Appeals says a class action lawsuit filed against Monsanto and related companies over its old plant in Nitro could go to trial in Putnam County next week.

Jennifer Bundy said Wednesday the start of the trial is still unknown, but that is not likely to start this week. Jury selection is supposed to last at least the rest of this week, she said.

At the end of the day Tuesday, 13 jurors had been selected. The plan is to have 28, including alternates, Bundy said.

When enough jurors have been selected, there will be a day off before the trial starts, she said.

According to complaints filed in Putnam Circuit Court in October 2007, during the years that Monsanto was operating its trichlorophenol plant, it adopted an unlawful practice of disposing of dioxin waste materials by a continuous process of open "pit" burning.

The dioxin in question -- known as 2,4,5 trichlorophenoxyacidic acid or 2,4,5-T -- was used by the military as part of the herbicide "Agent Orange" in Vietnam.

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

The plaintiffs' complaints called the process "dusty" and said the company's dust control was "haphazard," causing more than 3,000 pounds of a dioxin to be released into the Nitro air.

Sampling showed levels of 2,200 parts per trillion, while U.S. Environmental Protection Agency standards require a level less than 4 parts per trillion.

Monsanto owned and operated the plant from 1934 to 2000, according to the complaints.

The Nitro plant was operated by Monsanto until 1995 when the plant merged with Akzo Nobel, a Dutch company, 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 August, Supreme Court Chief Justice Margaret Workman appointed Ninth Judicial Circuit Judge Derek Swope to preside in the lawsuit.

Swope, a member of the Mass Litigation Panel, is sitting in for Twenty-Ninth Judicial Circuit Judge O.C. Spaulding, who stepped aside from the case due to illness.

Spaulding announced the same month that he was diagnosed with amyotrophic lateral sclerosis, or ALS, a degenerative motor neuron disease.

Swope postponed the trial, which was supposed to begin on Sept. 6.

The trial -- which is expected to last several weeks, even months -- comes after attorneys for Monsanto and the plaintiffs could not come to a settlement.

In preparation, Swope this week filed an order allowing for "pooled" photo and video coverage of the trial.

According to the judge's order filed Monday, one still camera and one video camera are allowed in the courtroom per day.

That means media outlets must work out coverage between themselves. If they cannot come to an agreement, the first to report to the courtroom bailiff will be allowed to cover the proceedings that day.

Also, no flash photography "of any kind" can be used in the courtroom.

"If the court deems a camera or a photographer is causing a distraction, that photographer will be escorted out of the courtroom and not allowed to return for the duration of the trial," Swopes' three-page order stated.