story by Ryan Saylor
rsaylor@thecitywire.com
The latest twist in the saga resulting from Whirlpool's disclosure that it contaminated its manufacturing site and a surrounding neighborhood with trichloroethylene (TCE), a potentially cancer-causing degreasing chemical, has arrived as attorney Ross Noland of Little Rock-based McMath Woods Law Firm filed amended lawsuits against both the company and plant manager Kenneth Thompson on behalf of 26 plaintiffs.
The original complaint prepared in May did not include Thompson, but the amended complaint filed with the Sebastian County Circuit Court on Sept. 11 says that the former plant manager oversaw "illegal" actions involving the TCE plume.
"Mr. Thompson has supervised the day to day operations of the facility in recent years, including illegal and negligent operations which resulted in, or further exacerbated, the TCE plume," the complaint reads, adding that Thompson is still responsible for environmental compliance at the now-shuttered Fort Smith facility.
The lawsuit goes on to allege in detail that Thompson's actions furthered the damage already done at the site along Ingersol Avenue in south Fort Smith.
"Defendant Kenneth Thompson had a duty to inspect and maintain the facility, prevent spills and releases of TCE, discover and delineate the TCE plume, remediate the TCE plume, prevent the spread of the TCE plume, and warn or inform of the TCE plume. Mr. Thompson breached his duties described above. Defendant Kenneth Thompson was, and is, in a position of corporate responsibility at the facility with the ability to influence corporate policy and unlawful corporate actions, and, as such, his actions or inactions partially facilitated the existence and extent of the TCE plume."
Calls to phone numbers listed for Kenneth Thompson were not answered.
Noland said Thompson was included as a defendant in the amended lawsuit due to a clause in the Arkansas Solid Waste Act.
"He's the one responsible on site, so that's why we've made a claim using the responsible corporate officer doctrine," he said.
The lawsuit also includes alleged timelines for when the pollution started and when remedies first started to take place, placing the first use of TCE at the facility in approximately 1967. It was alleged that Whirlpool and Thompson first learned about the TCE plume when removing an underground petroleum storage tank in the 1980s.
Also included in the lawsuit is an allegation of the use of another potentially harmful chemical.
"Defendants used, and released, other chemicals from the facility to the groundwater, including, but not limited to tetrachloroethylene, which is also known as PCE."
According to the Wisconsin Department of Human Services, the chemical can "cause liver cancer, kidney cancer and leukemia in laboratory animals."
"Liver and kidney damage has been noticed among exposed workers," the Wisconsin DHS added on their website.
The lawsuit is two different suits – one representing business interests with damages and another representing home owners in the plume area.
The suits seek damages for "the reasonable expense of necessary repair and restoration of their properties to their pre-release condition, including potential costs associated with monitoring and evaluation, rental values, and the difference in the values before contamination and the value after restoration. … Plaintiffs are also entitled to damages for the loss of use and enjoyment and deprivation of the truth worth and value of their properties, including discomfort, annoyance, disruption, inconvenience, loss of peace of mind, fear, and fright resulting from the TCE plume and contamination."
The suits also seek punitive damages "because the defendants 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 plaintiff's properties."
Noland said a response from Whirlpool has not yet been received. His previous filings were never responded to as the lawsuits were amended to add additional plaintiffs and Thompson as a defendant, therefore Whirlpool was never officially served with the suit.
A call to Whirlpool's media relations department was not returned. Whirlpool officials have previously said they will not respond to The City Wire requests for comment or information.