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$93M Monsanto settlement OK'd for Nitro area

Read the judge's order: http://wvgazette.com/static/watchdog/MonsantoMainOrder.pdf

CHARLESTON, W.Va. -- Thousands of Nitro-area residents will be eligible for medical monitoring and property cleanup, now that a judge has approved a $93 million settlement of a landmark lawsuit over pollution of their community with dioxin from the former Monsanto Co. chemical plant.

Circuit Judge Derek Swope on Friday entered an order approving the class-action deal, which was proposed nearly a year ago to resolve longstanding allegations that Monsanto had contaminated Nitro with toxic pollution from the company's production of the defoliant Agent Orange.

"I'm very pleased the settlement has been approved," said Charleston lawyer Stuart Calwell, who has waged a decades-long battle against Monsanto over its dioxin legacy. "We are now one step closer to delivering the benefits of the settlement to the members of the class."

Charles Love, lead lawyer on the case for Monsanto, would not comment on the ruling Friday.

In a 385-page order, Swope dismissed a variety of objections raised about the settlement, concluding that it is "fair, adequate and reasonable.

"Any objection that asserts that the settlements could have been better must be rejected because the question is not whether the actual settlements could have been better, but whether the actual settlements are fair, adequate and reasonable, not whether they might have been prettier, smarter or snazzier," Swope wrote.

The judge also approved up to $29.5 million in fees and costs for Calwell's firm, but made $9.5 million of that contingent upon the number of people who eventually qualify for the settlement and how many residents show certain levels of dioxin in their blood.

Swope noted that Calwell's "tenacity" in taking on Monsanto over dioxin "at great expense in time and money" in an "almost solitary course to make the defendants accountable for their actions." At the conclusion of an 11-month trial in 1984, Calwell lost a case in which he sued Monsanto on behalf of workers whose alleged dioxin exposure made them sick.

For more than 50 years, the former Monsanto plant in Nitro churned out herbicides, rubber products and other chemicals. The plant's production of Agent Orange, a defoliant deployed widely in the Vietnam War, created dioxin as a toxic chemical byproduct.

Dioxin has been linked to cancer, birth defects, learning disabilities, endometriosis, infertility and suppressed immune functions. The chemical builds up in tissue over time, meaning that even a small exposure can accumulate to dangerous levels.

In February 2012, Monsanto agreed to the settlement on the eve of an expected six-month trial in which residents sought medical monitoring for dioxin-related illnesses and a cleanup of what they argued was a contaminated community.

The company agreed to a 30-year medical monitoring program with a primary fund of $21 million for initial testing and up to $63 million in additional money dependant on what levels of dioxin are found in residents.

Initial health screenings will include blood tests and standard health-history reports. Also, samples will be taken to determine how much dioxin participants have in their blood.

These tests would be performed every five years. If 25 percent or more of the participants in the program are found to have more than certain "background" levels of dioxin in their blood, increased frequency of the tests kicks in, from every five years to every two years.

Monsanto also agreed to spend $9 million cleaning 4,500 homes in the area to rid them of dioxin-contaminated dust. The cleanups include vacuuming carpets, rugs and accessible horizontal surfaces with High Efficiency Particulate Air (HEPA) filter vacuums, wet cleaning floors, floor vents, tops of doors and window moldings, interior window sills, ceiling fans, light fixtures and radiators.

The settlement also would allow residents to retain their right to file personal-injury lawsuits against Monsanto if medical tests turn up illnesses potentially related to dioxin exposure.

"The court believes that it is in everyone's interest, including the public's, that this matter be resolved," Swope wrote.

"These settlements allow the citizens of Nitro and the surrounding area to turn the page on this chapter of their history," the judge wrote. "These settlements are in the public interest because a potentially hazardous situation can be addressed."

Dioxin from the plant not only made its way into the Kanawha River -- prompting long-term advisories against eating the fish -- but, the lawsuit alleged, contaminating dust that "was carried by prevailing winds over the town of Nitro, surrounding communities and the plaintiffs' homes and businesses."

The medical monitoring and cleanup provisions of the case cover residents within a smaller area than was included in the original class-action area, with the settlement focused on an area where experts for the plaintiffs' lawyers believed dioxin emissions from Monsanto were most likely to have put residents at risk of future pollution-related diseases.

In his order approving the deal, Swope said the number of residents eligible for medical monitoring dropped from about 80,000 to between 2,000 and 5,000. The number of homes eligible for cleanups dropped from 12,000 to 4,500, the judge wrote.

Swope said that the original estimate for residents who needed medical monitoring "was substantially overstated" and not supported by the "ultimate evidence" as the litigation progressed. Likewise, the judge said, the area and the number of homes where contamination warranted cleanups "were vastly overstated."

Former Putnam Circuit Judge O.C. Spaulding and Swope, who was brought in from Mercer County in 2011 to preside over the case when Spaulding stepped down, had issued rulings that threw out the property cleanup claims. Prior to settling, lawyers for the residents had appealed those decisions, arguing that the rulings left a huge gap in efforts to deal with the legacy of Monsanto's chemical-making operations.

More information about the settlement is available online at https://bibbclass.com.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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