FORT SMITH — Fort Smith city directors have decided not to pursue legal action against the Whirlpool Corp. for its hazardous chemical contamination of groundwater under its closed south Fort Smith plant and an adjacent neighborhood.
Meeting Tuesday evening for a voting session, the directors, voted 5-2 against a resolution to contract with an Illinois attorney who proposed to research whether the city could use its nuisance ordinance to prosecute Whirlpool for contaminating groundwater in the city with trichloroethylene.
City attorney Jerry Canfield wrote in a memo last week that, given the language of the city’s nuisance and littering ordinances, it would be difficult to successfully prosecute Whirlpool for violating those ordinances.
The city’s prosecution of a company that polluted in Fort Smith would set a precedent that would hurt all business in Fort Smith nowand in the future, City Director Kevin Settle said Tuesday. It’s the job of the Arkansas Department of Environmental Quality, the federal Environmental Protection Agency and the Occupational Safety and Health Administration to pursue polluters, he said.
An email dated Sunday from Hazardous Waste Division Manager Tammie Hynum to Fort Smith City Administrator Ray Gosack said the department did not fine Whirlpool because the company reported the trichloroethylene pollution to the state and volunteered to clean it up. The department reserves the right to fine Whirlpool for noncompliance with a department Consent Administrative Order Whirlpool signed to clean up the contamination, she wrote.
Settle said prosecuting Whirlpool could slow down its cleanup of the contamination and its attempt to find a buyer for its vacant plant. Whirlpool closed the plant in June 2012.
Prosecution also would not help the homeowners in the neighborhood who have been affected by the trichloroethylene contamination, he said. They are pursuing their own legal action against the corporation with lawsuits in federal court.
The city has done all it can, Settle said. It’s only course is to press the environmental quality department to continue to hold Whirlpool to its cleanup plan and hope that Whirlpool will do right by the homeowners.
Director Keith Lau said it would be unfair to prosecute Whirlpool when it self-reported the trichloroethylene contamination and agreed to work with the state to clean it up.
Directors Pam Weber and Philip Merry voted in favor of the resolution.
Merry said while it is the job of the Department of Environmental Quality to determine how the pollution should be dealt with, it is the city’s responsibility to enforce its laws no matter who the violator is. By not prosecuting Whirlpool, he said, the city would be shirking its duty to enforce its laws.
Like Merry, Weber said the city’s government has the responsibility to protect the city’s environment. She was concerned about the message it would send if the city did not enforce its nuisance and littering laws against polluters.
Weber also said that while Whirlpool admitted to the pollution, she was upset by the amount of time that has passed with no action from Whirlpool to clean up the contamination.
Whirlpool discovered in 1989 that the trichloroethylene it used from 1967 to 1981 to clean metal refrigerator parts before assembly had leaked into the ground at the plant’s northwest corner. In 2001, the company found the plume of the chemical seeped through the groundwater into the neighborhood to the north of the company property.
The company reported the contamination to the Arkansas Department of Environmental Quality in 2001 but did not disclose the pollution to residents of the neighborhood until January 2013.
In December, the department approved a Remedial Action Decision Document that set out the steps and schedule Whirlpool must follow to clean up the contamination. Whirlpool has agreed to chemically neutralize the trichloroethylene under its property and to rely on natural decomposition of the trichloroethylene under the neighborhood.
Whirlpool and the department have said the chemical is not a hazard to the residents of the neighborhood because there is no pathway for the chemical to come in contact with them.
Northwest Arkansas, Pages 7 on 02/20/2014