Class-action request is 3rd Whirlpool suit

Filing links 55 properties in pollution case

FORT SMITH - A lawsuit seeking class-action status against the Whirlpool Corp. for property damages from a spilled hazardous chemical is one of three civil suits filed against the corporation in Sebastian County Circuit Court this week.

A Rogers attorney representing Scott Day, identified in the suit as a resident of the neighborhood affected by trichloroethylene contaminated groundwater, stated in the lawsuit filed Monday that owners of about 55 properties have been damaged by “wrongful conduct by Whirlpool.”

The suit claims trespass, nuisance, violation of the Arkansas Deceptive TradePractices Act for false and deceptive acts and practices in business and commerce, and fraudulent concealment for the continuing nature of the damages and the failure and refusal of the company to remove the contamination.

The civil complaint asks for punitive damages against the company, charging it knew or should have known that its conduct would result in damage and that the company showed malice and reckless disregard for the consequences of its conduct.

Two other lawsuits were filed against Whirlpool in circuit court on Thursday. Named as plaintiffs in one were Barbara Wilkinson, Harry Smith II and Raymond Flowers, all of whom live, according to the lawsuit,on Jacobs Avenue, which is in the neighborhood affected by the trichloroethylene contamination.

The second lawsuit’s plaintiffs are owners of property in the affected neighborhood: Kralicek and Flusche LLC, Reith Properties LLC, Sam Reith, Neal Morrison, Suzanne Morrison Holloway and James Westpfahl.

The two suits are similarly worded and contain similar claims. As in the Scott Day suit, the two filed Thursday charge that the contamination by Whirlpool trespassed on their property and constituted a nuisance.

The suits filed Thursday also charge that Whirlpool was negligent when it failed to keep the trichloroethylenefrom leaking into the ground, and in failing to discover the leak, clean it up and prevent it from spreading into the affected neighborhood.

The property owners also allege that Whirlpool violated the Arkansas Solid Waste Management Act by polluting their property with the chemical. The lawsuit claimed that the trichloroethylene emanating from Whirlpool’s property into the adjoining neighborhood is a solid waste under the act.

The plaintiffs in the two lawsuits seek damages for the difference in the fair market value of the land and improvements from before and after the contamination, and for the loss of use and enjoyment of the property. The plaintiffs in the Kralicek-Flusche lawsuit, those who don’t actually live on the property they own, also are seeking damages for the loss of profit for past and future rental payments.

They also seek punitive damages against Whirlpool.

Following the filing of thelawsuits, Whirlpool issued a statement Friday:

“We will review the claims of these lawsuits regarding property values once we receive them and plan to vigorously defend ourselves. We continue to work with the [Arkansas Department of Environmental Quality] to finalize a remediation plan and monitor the situation to reassure Fort Smith residents that they have not been exposed to TCE.”

TCE is the abbreviation for trichloroethylene.

Whirlpool used trichloroethylenefrom 1967 to 1981 to clean metal refrigerator parts before assembly. Workers removing an underground fuel tank in 1989 discovered the chemical in the ground, according to the company.The company discovered in 2001 that a plume of trichloroethylene seeped into the groundwater under the neighborhood north of the plant and reported it to the environmental quality department.

Since then, consultants for the company have been monitoring the contamination via wells drilled on company property and in the affected neighborhood and have beensubmitting reports to the department.

It also performed tests as late as last year to determine if the trichloroethylene could be chemically neutralized. It didn’t work because the density of the ground inhibited the spread of the neutralizing chemical from the well in which it was injected, Whirlpool reported.

Last month, Whirlpool consultant Environ submitted a final plan to the department on treating the contamination. According to the plan, Whirlpool wants to use the chemical neutralization method on the trichloroethylene on plant property.

On the affected neighborhood property, the company plans to rely on natural decomposition of the chemical and institutional controls such as deed restrictions and ordinances to restrict access to the chemical underground.

Fort Smith city directors last month rejected an ordinance proposed by Whirlpool to ban the drilling of water wells in the affected neighborhood. The directors passed a resolution, though, calling on Whirlpool and the department to work as quickly as possible to clean up thecontamination in the affected neighborhood.

Whirlpool and the department have said the trichloroethylene in the groundwater poses no health threat unless humans consume it.

The lawsuits filed Thursday by the property owners claim that trichloroethylene can reach the surface as vapor after it is released into the groundwater and that the vapor can invade homes and create human health risks.

It also is a known carcinogen, according to the suits, and can affect the central nervous, immune, endocrine and other bodily systems.

Earlier this month, Sebastian County Assessor Becky Yandell lowered the valuations of about 75 properties in the affected area because of the groundwater contamination.

In a core area of about 50 properties, she lowered the land values by 75 percent and the structure values by 50 percent. In an area with about 25 properties surrounding the core properties, she lowered the land values by 75 percent and the structure values by 25 percent.

Northwest Arkansas, Pages 11 on 05/25/2013

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