Union Pacific Railroad filed a motion this week to dismiss a class-action lawsuit filed on behalf of Wichita residents living above a toxic chemical spill.
The spill comes from a Union Pacific rail yard near 29th and Grove. It contaminated about three miles of groundwater underneath neighborhoods in northeast Wichita with trichloroethylene, a carcinogenic degreasing agent.
The lawsuit, filed in October, alleges residents suffered property damages and lost property values as a result of the chemical spill. It names two plaintiffs who own property in the impacted neighborhoods.
Union Pacific contends that the lawsuit should be dismissed because it does not provide facts or evidence that residents suffered property damages as a result of the spill.
“Plaintiffs fail to plead a single fact identifying or describing the types of damages each claims to have experienced,” the company’s motion reads.
Even if the claims were true, the company argues the lawsuit is invalid because the spill took place decades ago – at the latest in 1989. State statutes limit the amount of time a lawsuit can be filed after an incident occurs.
“The acts giving rise to Plaintiffs’ negligence, nuisance, and trespass claims — alleged spills at Union Pacific’s Site in the 1970s, 1980s, or earlier — occurred more than ten years ago, so these claims are barred,” the motion reads.
The city of Wichita discovered the contamination in 1994. In 1998, the state of Kansas identified the Union Pacific rail yard as the source of contamination.
Chris Nidel is a lawyer with the Maryland-based Nidel & Nace firm, which helped file the lawsuit. He said they’re reviewing the motion and will respond in court.
“This is a classic response from a company that simply refuses to take responsibility for the impact of decades of irresponsible conduct, allowing them to profit at the expense of the local community who has and will continue to suffer as a result of this conduct,” Nidel wrote in a message to KMUW.
The initial lawsuit argued that the statute of limitations should not prevent the court from seeing the case because Union Pacific concealed the pollution from residents. But the company writes in the motion that the state of Kansas, which is subject to open records law, has been aware of the spill for more than two decades.
“The material facts relating to Plaintiffs’ allegations have been in the public domain and available to Plaintiffs for more than twenty years,” the motion reads.
Many Wichita residents learned about the contamination last year, when the Kansas Department of Health and Environment started seeking feedback on a final version of the site’s clean up plan. KDHE created a community relations plan in 2003 to inform residents about the spill, but failed to follow through on several key aspects of it, including notifying certain elected officials.
Since last year, the company has committed to do more air quality and soil vapor testing among homes, schools and daycares in the impacted area. Union Pacific also has plans to conduct a door-to-door survey to identify residents in the impacted neighborhoods who use private wells for drinking water.
The company can’t comment on ongoing litigation, said Christina Long, Union Pacific’s communication partner. But it will still work with the community on continuing clean up efforts.
“The company's commitment to the community remains unchanged,” Long said. “Union Pacific will continue to cooperate with the Kansas Department of Health and Environment to investigate and address the spill’s effects.”
The company emphasized that the spill has not impacted the city’s drinking water, which is separate from the groundwater and is safe to drink.
