More input sought on Whirlpool pollution plan

The Fort Smith Board of Directors wants more time to consider a recently proposed plan by Whirlpool to clean up pollution at and around the company’s shuttered manufacturing plant.

Prior to the Arkansas Department of Environmental Quality's Nov. 12 meeting to present a draft Remedial Action Decision Document (RADD) for Corrective Action outlining what course of action Whirlpool will have to take to clean up potentially cancer-causing trichloroethylene (TCE) that has migrated into the neighborhood north of its former manufacturing facility, the Fort Smith Board will have a special study session to discuss what legal options the city has against the Benton Harbor, Mich.-based corporation.

During the public officials forum at tonight's regular meeting of the Board, Director Pam Weber said she wanted the Board to explore every avenue possible prior to the Nov. 12 meeting at the Fort Smith Senior Center on Cavanaugh Road.

"I don't think it's a secret that most of the people who sit up here are not happy with the progress that's been made as far as the TCE contamination, so I would like to make a motion that before the Nov. 12 public meeting, we have a study session to discuss – we did a little bit of discussion the other night, but I think we could use a little bit of discussion. And I would like to ask (city attorney) Jerry Canfield to be at that study session to talk about what legal rights a city has when dealing with a corporation and a contamination plume like this."

Deputy City Administrator Jeff Dingman, who holds a law degree, said the city had conducted research to explore what options it had regarding Whirlpool and the TCE contamination. He said the previous attempt to implement a ban on drilling for groundwater wells was likely the furthest the city could go in trying to enforce any sort of policies against Whirlpool.

"Of course, it came about when we started talking about regulatory things that the city could do to … that's when we first started talking about it, when the proposal for an ordinance to ban water well drilling (was discussed), that sort of thing. That was sort of our … at that point in time, we sort of looked at what options do we have? Really, the option was to let the regulatory proceedings that needed to happen with ADEQ and all that take their course. And so that's really our option – to have ADEQ, the agency that's responsible for monitoring that sort of thing, do their thing."

As far as the now-upcoming special study session, Dingman said Canfield would prepare a report for the Board and answer questions about legal remedies available, or not available, to the city even though options have previously been looked at and no options are likely to be available to the Board.

"So, as far as a legal course of action for the city itself, of course the city attorney will do his thing and make his report and have a discussion with the Board, but at this point, there's really not been an avenue for us to jump in and say the city itself has, or its residents, have incurred particular damage and we think needs to be remedied at this point. So at this point, it's been the property owners with the corporation and it's been the state regulatory agency with the corporation. And the city's an interested party, certainly, but as a legally-interested party, it isn't at this point. … If there had been legal remedies at our disposal, they probably would have been pursued before now."

Weber also asked City Administrator Ray Gosack to request that either Gov. Mike Beebe or a representative of his staff be on hand for the Nov. 12 public meeting with ADEQ.

Asked what Beebe could do that was not already being done by the ADEQ and the city, Weber said she did not know, though she added that Beebe had involved himself when Whirlpool announced on Oct. 27, 2011, the closure of the now-contaminated Whirlpool facility.

"That's why I asked to get the governor involved because he was highly involved when Whirlpool was relocating and trying to work with them to keep them in the area. I think he's well aware of this going on. So I'd like to see some involvement from them because this is a large issue to our city."

Weber said she would also like to see some sort of third party analysis of the information presented to the Board by Whirlpool's consultants and ADEQ.

"Can the city benefit from some independent consulting? Probably so. In my mind, we probably could. I'm not one that … Let's face it – ENVIRON, they are hired by Whirlpool. They work for Whirlpool. So their allegiance is to Whirlpool. Their allegiance is not to the city of Fort Smith or the citizens of Fort Smith. Their allegiance is to Whirlpool. I think some independent verification would probably be a good idea. And I think it's something we need to discuss. It's a complicated issue. I think every director, and Jeff and the administrator – we've all spent hours studying. It's a science that we don't deal with often."

While no date has been set, a special study session would need to happen quickly as Nov. 12 is less than a month away. Weber said regardless of what the city does, she thinks public opinion will make a difference in whatever decision is made regarding Whirlpool and the company's plan to clean up the TCE contamination.

"We need to explore that and see if we really do (have options). I still believe in the court of public opinion, too, and at this point, I think Whirlpool is suffering in that with our community and several others around the country."

In other business, the Board:
• Defeated an amendment to the Fort Smith Municipal Code that would have dictated the removal and placement of residential solid waste carts and recyclables from the street after collection;
• Approved an ordinance amending the city's Code of Business Conduct;
• Approved an ordinance ordering the owners of 916 North 11th Street to demolish dilapidated and substandard structures on the property;
• Approved an emergency clause following the third and final reading of an ordinance directing the installation of a four way stop at the intersection of Chad Colley Boulevard and Massard Road; and
• Approved a consent agenda with projects valued at $3.442 million.