CHARLESTON – A $93 million settlement in a class action lawsuit against Monsanto over a chemical used in Agent Orange will reportedly be appealed.

The Charleston Gazette reported Feb. 20 that Shepherdstown attorney Ruth McQuade had filed a notice of appeal with the state Supreme Court. The settlement was approved in January over the objections of McQuade, who represents a group of objectors.

A complaint was filed in December 2004 in Putnam County Circuit Court, where the settlement was approved by Circuit Judge Derek Swope. It sets up a 30-year medical monitory plan and provides $22.5 million in attorneys fees and another $7 million in costs for attorney Stuart Calwell and his firm.

McQuade claims the settlement is unlikely to deliver more than $15 million to class members and that Calwell’s fee could be as high as 70 percent of the total settlement.

A primary fund of $21 million will pay for the testing of eligible class members, and up to $63 million in additional funding will be available over the 30-year life of the program.

Also, the agreement will set aside up to $9 million to professionally clean homes in the Nitro area.

About 4,500 homes are located in the areas where individual remediation “may be desirable,” according to the company.

The settlement resolves all claims in pending litigation, as well as class actions, filed in West Virginia.

According to the complaints, 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 residents’ complaints called the process “dusty” and said the company’s dust control was “haphazard,” causing more than 3,000 pounds of the dioxin to be released into the Nitro air.

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 2011, state Supreme Court Justice Margaret Workman appointed Swope, of the Ninth Judicial Circuit, to preside over the lawsuit.

Swope overruled several objections to the settlement.

An earlier report in the Gazette noted that $9 million of Calwell’s fees are contingent on the amount of people who qualify for the program and the dioxin levels in their blood.

From the West Virginia Record: Reach John O’Brien at

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