Fort Smith Board rejects offer to seek penalties against Whirlpool

A proposal that would have seen the city of Fort Smith seek to impose fines against Whirlpool Corporation for violating the city's nuisance ordinance by spilling trichloroethylene (TCE) at its site more than 30 years ago, a spill that eventually spread to the neighborhood north of the site, failed at Tuesday's (Feb. 18) meeting.

The plan, which was proposed by attorney Melissa Sims of the Sims Law Office of Princeton, Ill., would have had the firm investigate methods in which is could pursue large fines against the company for, among other things, littering. Whatever fine the firm was able to secure for the city would have had a third of the settlement or fine paid right off the top, with the rest to be used by the city as it saw fit.

In expressing his opposition to the plan, which failed in a 2-5 vote, Vice Mayor Kevin Settle said he felt any pursuit of fines by the city could place current litigation, including a class action lawsuit, in jeopardy for property owners who live above the TCE plume in south Fort Smith. He also said he did not want the city to take action that could change the way businesses operate in the city.

"I don't want this Board to make a policy decision that would greatly affect the way business is done today or greatly affect the businesses that will be here tomorrow. What we don't want to do is create a policy that in essence tells the public, 'Hey, we're going to overstep the reach of our government, of our city government, and try to do more than the state government and federal government already have to do."

Settle said at this point in the clean up, it is time for the city to move out of the way and allow the process to work – regulatory processes and legal processes.

"I've been an advocate of these homeowners in this area. I think they need to be righted as quick as possible. I'm hoping Whirlpool will step up to the plate and do them right. And there are ongoing discussions with that, but ultimately we need to step out of the way and let what happen, happen. If at sometime down the road Whirlpool does not do the right thing, the ADEQ will fine them."

The discussions Settle said are ongoing apparently have not gone far, according to one resident who spoke after the meeting.

Laretha Plunkett, who is a resident in the neighborhood north of the now-shuttered facility and a plaintiff in a lawsuit against the company, confirmed to The City Wire after the vote that Whirlpool had just last week made an offer through her attorney to settle the case for $25,860.

While Plunkett's attorney, Rick Woods of Taylor Law Partners in Fayetteville, told The City Wire Monday (Feb. 17) that any action by the city could impede his and other attorneys' efforts to secure settlements or a positive ruling in court, Plunkett said she was disappointed by the no vote.

"I don't think it would (impact lawsuits against the company)," she said.

Plunkett said she agreed with the stance of City Director Philip Merry, who along with City Director Pam Weber were the only two to vote in favor of the lawsuit. Merry said during the meeting that the city should not pick and choose how the laws are enforced, adding that he believed the city's laws should be enforced on everyone, corporations included.

"This vote to vote against it is to vote against enforcing law that we have. …I don't understand why we are voting on whether or not to enforce the law that our forefathers already put there."

In the end, City Director Keith Lau summed up the collective thinking of the five Board members who voted against pursuing legal action against the company by saying it comes down to the "validity of our ability to prosecute or collect fines" as well as whether pursuing action would promote the city as business friendly.

"I think, for me, I want this city to be perceived as fair and equitable in promoting business, as well as the interests of our citizens. And if we have a manufacturer who inadvertently pollutes the environment, then self reports, and then through the governing entity of the state comes up with a remediation plan to fix the problem, and then for us to come back in after it's all said and done because of outcry from the citizens on that side of the equation — we're not treating that manufacturing group equitably or justly. So what I'm saying is let the courts run their course."

If the city had agreed to contract with the Sims Law Office, no payment would have been required unless the case was won or settled.