FORT SMITH — Fort Smith’s city attorney said it would be difficult to prosecute Whirlpool Corp. for a hazardous chemical contamination of the ground under its plant and an adjacent neighborhood using the city’s nuisance ordinance as an Illinois attorney suggests.
In a memorandum dated Friday to City Administrator Ray Gosack, city attorney Jerry Canfield wrote that it would be difficult to apply the language in the city’s nuisance ordinance, as well as the trash and litter provisions in the city’s solid-waste ordinance, to the situation involving Whirlpool.
Trichloroethylene seeped into the ground during the company’s refrigerator manufacturing operation from 1967 to 1981. The trichloroethylene plume infiltrated the groundwater under part of the plant property and migrated into the neighborhood to the north. Whirlpool reported the contamination to the Arkansas Department of Environmental Quality in 2000 and has been working to come up with a remediation plan since.
Before Forth Smith can prosecute Whirlpool under the nuisance ordinance, Canfield wrote, the ordinance requires the city to give prior notice of the violations.And the statute of limitations would limit the city to asserting violations no older than a year, he wrote.
It is possible the courts will look on the city’s prosecution effort as an attempt to infringe upon the Environmental Quality Department’s jurisdiction in regulating pollution in the state, the memorandum stated.
The department approved a Remedial Action Decision Document in December that sets out cleanup steps and a schedule that Whirlpool has agreed to follow.
“It is difficult to evaluate the potential for success in the absence of a specific proposal regarding ordinance and procedure,” Canfield wrote. “It may be that proposed action will relate to civil litigation.”
Canfield consulted with City Prosecutor John Settle and wrote the memorandum after Melissa Sims, an attorney from Princeton, Ill., proposed to research whether FortSmith could prosecute Whirlpool using the city’s nuisance ordinance.
City directors are scheduled to consider a resolution tonight to enter into a contingent fee agreement with the Sims Law Office and the Dallas law firm of Baron and Budd P.C., “regarding the pursuit of claims against Whirlpool Corporation for TCE [trichloroethylene] pollution.”
Sims told city directors in a meeting last week that she and Baron and Budd would take about two months to review all the data Whirlpool consultants have compiled on the trichloroethylene contamination. She also said she would research city ordinances to determine whether there was a way to use them to take Whirlpool to court to answer for the pollution and to speed up cleanup efforts .
According to the proposed fee agreement, the attorneys would evaluate the city’s possible nuisance claims against Whirlpool and advise on possible actions to take. The city directors would have the final decision in whether to proceed with litigation and would retain control overits direction.
The attorneys would not charge a fee to the city for their work until the litigation was resolved. If the city agreed to carry on with litigation, it would be with Sims and Baron and Budd.
If there is a monetary judgment against Whirlpool from the litigation, Sims and Baron and Budd would receive 33.3 percent of any gross recovery or 40 percent if the case goes to appeal, according to the agreement.
In a Jan. 21 letter to Gosack, Sims stated that she represented the Village of DePue, Ill., and used the town’s nuisance ordinance against Exxon Mobil and CBS Viacom for environmental contamination in DePue. She wrote that the companies ultimately settled with the village for $975,000.
Canfield’s memorandum to Gosack recounting the history of DePue’s legal actions against Exxon Mobil and CBS Viacom stated that DePue pursued civil, not criminal, prosecution against the companies for nuisance violations. The village tried and failed twice, with the state and federal courts dismissing the legal actions each time.
Contacted Monday, Sims declined to comment on Canfield’s report. She said she would not be at tonight’s city directors meeting.
In response to questions from city directors last week, Gosack wrote in a memorandum Friday that prosecuting Whirlpool for industrial pollution, instead of relying on the Environmental Quality Department, would set a new policy in the city.
“If the board now desires for the city to apply its nuisance ordinances when industrial pollution occurs, that policy should be articulated so that the community knows what to expect and the staff can be consistent in its application,” Gosack wrote.
In an email Monday responding to questions from City Director Kevin Settle, Gosack wrote that taking Whirlpool to court could create uncertainty and hinder the company’s effort to find a buyer for the south Fort Smith plant. The plant closed in June 2012.
Northwest Arkansas, Pages 7 on 02/18/2014