Deed restrictions placed on Whirlpool site, TCE clean up continues

The Whirlpool site in Fort Smith that has been the center of a pollution cleanup has now had deed restrictions put in place, limiting certain future activities at the site for not only Whirlpool, but any individual or company that may purchase the site.

Word of the deed restriction was confirmed Tuesday morning (April 8) by the Arkansas Department of Environmental Quality about an hour and a half before Whirlpool officials were scheduled to update the Fort Smith Board of Directors on efforts to cleanup a spill of potentially cancer-causing trichloroethylene (TCE) that occurred at its now-shuttered Fort Smith factory during the 1980s.

Katherine Benenati, public outreach and assistance division chief at ADEQ, said by e-mail that the deed restrictions only affect the 152 acre site owned by Whirlpool and does not include the residential neighborhood north of the facility that sits atop the TCE plume.

The deed restriction, filed Monday (April 7) with the Sebastian County Clerk's office, is two restrictions that prevent the use of groundwater at the site, as well as "excavation of soil, concrete or asphalt" without the permission of ADEQ. The restrictions also state that the owner of the property will be responsible for inspection and repair of the concrete or asphalt cover which will be installed at a later time as part of the remediation plan approved by ADEQ for the Whirlpool site.

Speaking to The City Wire prior to his presentation to the Board, Whirlpool's Corporate Vice President of Communications and Public Affairs Jeff Noel said the deed restrictions were a measure to protect the public from any chemicals that may remain below the surface, even after the company completes its remediation plan, which includes the use of chemical oxidation to neutralize the TCE.

"What's really good about a deed restriction is it's required in the law. So if you have a purchaser of the property, the deed requires you to do certain things. And I think the most important one is to maintain a covering, or a cap, in the area where there is contamination so that you have a control over the kind of moisture in the groundwater that can go through rain, etc. … A deed restriction is just one more layer of assurance that if Whirlpool doesn't own the property, that we'll see to it that whoever purchases it from us will abide by those same agreements."

In the past, other moves to impose deed restrictions on properties have been met with resistance. In early 2013, Whirlpool attempted to get the Board to pass an ordinance that would have prohibited the drilling of groundwater wells in the neighborhood that sits on the TCE plume north of its plant. The move was met with much opposition and was eventually voted down by the Board.

Deputy City Administrator Jeff Dingman said the groundwater well restriction could always come back before the Board for a vote, though no action has been initiated by anyone on the Board or at Whirlpool, he said.

During the presentation to the Board, Civil Engineer Mike Ellis of ENVIRON — Whirlpool's contracted environmental consulting firm — said 30 injection sites have been placed above the TCE plume in south Fort Smith, adding that the first set of injections was completed on March 25. A subsequent injection is likely to happen in May or June, he said, adding that ENVIRON was monitoring the plume and the developing results of the injections on a weekly basis, which he said could change to a bi-weekly basis at a later time, depending on conditions and any success with the injections.

Noel told the Board he felt good about the progress being made at the site, as well as negotiations with homeowners in the neighborhood regarding possible settlements as a result of the TCE contamination. He said any details of the negotiations would not be discussed publicly, though, due to the residents retaining counsel and lawsuits having been filed against the company.

During the discussion of settlements, Mayor Sandy Sanders requested that Whirlpool take action similar to Timex, itself in the middle of a TCE pollution cleanup near Clinton National Airport in Little Rock. The company has offered to purchase up to 40 properties in its TCE zone and previously entered into a $2.5 million settlement with the airport after the nine acres Timex occupied were deemed unusable, according to a report by the Arkansas Times.

In response to Sanders' suggestion, Noel said Whirlpool was attempting to treat residents fairly.

"Because of the path that some of the residents have chosen to follow by using attorneys, I'm not in position where I can go to the media and explain for them the type of discussions that are being held with the residents. All I can tell you is we have said from the beginning that we look forward to finding a path of successful resolution with the residents and I won't give you the details of what Timex is offering, but I think there are different reactions. Our commitment is to treat the residents fairly. We're doing that and we've communicated with them and there's been a lot of things discussed with both the attorneys and with the residents."

Attorney Ross Noland of Little Rock-based McMath Woods, who represents about two dozen clients who have filed suit against Whirlpool, said Tuesday he was not at liberty to discuss negotiations with the company or whether any settlement offers have been extended.

As for what will happen to the property once remediation is completed, Noel said Whirlpool is in talks with two companies about purchasing the property, adding that "sophisticated" real estate professionals would not balk at purchasing the property, even with the deed restrictions in place. Instead, he said many potential investors would see the benefit of the site and would be eager to make use of the site's amenities and the local workforce.

Noel also referred to the often rocky relationship between Whirlpool and the city of Fort Smith, adding that the company's actions early last year in attempting to pass the groundwater well restriction were not productive and added that movement to speed up remediation efforts were because the company listened to Fort Smith leaders and residents.

"I think it's important to remind myself that it was just about a year ago when I was here and I don't believe it was a very productive meeting because of us. And I think because of your direction and your insistence that we continue to communicate, I think a lot of progress has been made and we are committed to maintaining that level of communications with you, but I will say it started with your leadership and I think it's your act of stewardship and making sure we do the right thing that is a really, in my mind, one of the reasons progress has been made."