FORT SMITH - Fort Smith city directors have decided not to pursue legal action against Whirlpool Corp. for its hazardous-chemical contamination of groundwater under its closed south Fort Smith plant and an adjacent neighborhood.
The city directors voted 5-2 Tuesday against a resolution to hire 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 memorandum earlier this month that, given the language of the city’s nuisance and littering ordinances, it would be difficult to successfully prosecute Whirlpool under them.
Prosecuting a company that polluted in Fort Smith would set a precedent that would hurt all business in Fort Smith now and 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 Feb. 16 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 that 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 actions against the corporation with lawsuits in federal court.
The city has done all it can, Settle said. Its 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.
City 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.
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 north of the company property.
The company reported the contamination to the Environmental Quality Department 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.
Arkansas, Pages 15 on 02/23/2014