Source: Times Record (Fort Smith, AR), May 24, 2013
Posted on: http://envfpn.advisen.com

Three lawsuits were filed this week in Sebastian County Circuit Court against Whirlpool Corp. seeking monetary damages for harm caused by a chemical that leaked into a nearby neighborhood.

One lawsuit represents a trio of homeowners; another was filed on behalf of landlords who own a total of 12 properties in the affected area.

Those two cases were filed Thursday by Taylor Law Partners LLP of Fayetteville and McMath Woods P.A. of Little Rock.

The amount of money being sought has not been determined.

“We will have to put the case to its proof to determine the value,” said Ross Noland, with McMath Woods P.A. “We’re going to have to get expert assistance to evaluate the claims.”

According to Whirlpool, which closed its Fort Smith plant in June 2012, a plume of trichloroethylene, or TCE, a known carcinogen, leaked into groundwater at the plant site, then later into a neighborhood to the north. TCE was used at Whirlpool as a degreasing solvent between the late 1960s and early 1980s, according to the company.

In 2001, Whirlpool and the state came to an agreement for remediation efforts, according to Arkansas Department of Environmental Quality.

Concerns of the contamination emerged after Whirlpool requested a ban on new wells around the site earlier this year.

According to the Sebastian County Assessor’s Office, the contaminated area includes a total of 55 parcels. Three are commercial properties, while 17 are homes in which the owners live. More than 30 are rental properties.

The lawsuits seek damages for “the reasonable expense of necessary repairs and restoration of the property which was damaged, plus the difference in the value of the property before contamination and the value after restoration.”

“Plaintiffs are also entitled to damages for the loss of use and enjoyment of their properties, discomfort, annoyance, disruption, inconvenience, loss of peace of mind, fear and fright resulting from the TCE plume and contamination,” the suits state.

The lawsuits also claim that punitive damages are appropriate “because the defendant knew or ought to have known, in light of the circumstances, that TCE could naturally and probably result in a groundwater plume and damage to plaintiffs’ properties.”

“Defendant’s actions and the TCE plume have unreasonably interfered with plaintiffs’ use and enjoyment of their properties,” the suits claim. “That interference has resulted in damage to plaintiffs.”

On Monday, a class-action lawsuit was filed against Whirlpool in Circuit Court on behalf of Scott Day and “all others similarly situated.”

According to the suit, which was filed by Shemin Law Firm of Rogers, Day owns property in the affected area north of Whirlpool.

The class-action suit also seeks monetary damages.

“Class-action treatment is a superior method for the fair and efficient adjudication of the controversy,” the lawsuit states. “Such treatment will permit a relatively large number of similarly situated persons or entities to prosecute their common claims in a single forum simultaneously, efficiently and without the unnecessary duplication of evidence, effort or expense that numerous individual actions would engender.”

Plan Update

Whirlpool Corp., which has been working with the state regarding the contamination since 2001, submitted a revised cleanup plan to the Department of Environmental Quality on April 8.

That plan was amended on April 22 to include additional “soil gas monitoring.”

“We’re still awaiting approval of ADEQ on the first plan,” Fort Smith Ward 3 Director Mike Lorenz told a group of graduating Citizens Academy members Thursday night. “It is changing a lot in the last couple of revisions. There are a lot more positive outcomes.”

Following a series of potential solutions, the “final remedy selection,” according to the document, is on-site chemical oxidation, off-site “monitored natural attenuation” and institutional controls.

To eliminate access to contaminated soil, Whirlpool says it will institute restrictive covenants when the property changes ownership. Whirlpool says it will also seek restrictions on groundwater access through deed restrictions, restrictive covenants or a city ordinance.

“I think we all want this cleaned up in the best manner possible for the community,” At-Large Director Pam Weber said. “This is something we can’t let slide.”

Property Value Concerns

Earlier this month, properties near the Whirlpool plant were reduced in value 25 percent to 75 percent by the Sebastian County Assessor’s Office.

Assessor Becky Yandell said the move would offer the home and property owners a tax break.

That reassessment is challenged by Raymond Singer, who, through emails, questions Yandell’s authority to reduce the property values. He has asked Yandell to seek an opinion from the Arkansas attorney general.

“I believe that the property owners have been greatly affected, however, it is your responsibility to follow the law,” he wrote. “It is my understanding that a commercial chemical spill would not qualify as an ‘act of God’ for this situation.”

In a previous interview, Yandell said, “The assessor does have the right to come in and change property values with a disaster.”

“It is a disaster,” she added.

Links to documents, a map and other information related to the TCE contamination are packaged together on the city’s website, fortsmithar.gov.