Attorney: Fort Smith has no authority in Whirlpool issue

Fort Smith City Directors hoping for some sort of October surprise that would have given them broad legal powers to enforce the city's wishes and demands on Whirlpool in their cleanup of trichloroethylene (TCE) were given the news on Tuesday (Oct. 22) that likely no legal remedies are available to the city.

TCE is a potentially cancer-causing chemical that Whirlpool officials admit leaked into the groundwater from its use as a degreaser.

According to City Attorney Jerry Canfield, while the city does have broad powers in various matters, situations such as the cleanup of the TCE contamination near Whirlpool's now-shuttered manufacturing facility in south Fort Smith are under the authority of the state and therefore supersedes any power or authority the city might have had, adding that the "state's power is dominant."

Canfield said two other options the city had was placing restrictions on drilling, like what was proposed earlier this year and defeated by the Board of Directors, and policing the public rights-of-way.

"This power may be relevant in several respects," Canfield wrote in a memo to the Board prior to today's meeting. "There has been discussion of the location of a monitoring device within City street right-of-way, and the City will be involved in the approval of any such action."

He also spoke of a proposed agreement with Whirlpool should the city incur additional costs for utility work to take place in the area of the plume, such as soil removal and dewatering operations.

City Director Pam Weber was frank in her reaction to Canfield's assessment of the city's legal rights.

"From the way I'm reading this (the memo), and the more I'm hearing, we're basically at the mercy of people in Michigan and Little Rock, who so far have done a poor job, in my opinion as far as what they've come up with (for) a remediation plan," she said. "Is that correct? We have no power? Do we have the power to say we do not like this plan? Or do we accept it?"

Canfield again reiterated that the city's rights to compel Whirlpool to do a specific act, including a different method of cleanup, was practically non-existent.

"The city as a governmental entity, in my opinion, has no power to reject, has no power to supervise or reject or insist upon – by governmental power – insist upon a different handling of the situation than that proposed by ADEQ (Arkansas Department of Environmental Quality), as I understand it's basically proposed by the property owner (Whirlpool) and approved by ADEQ," he told Weber. "This is a matter in the state's police power and ADEQ is representing the state, and as to the specifics of the investigation and the remediation plan, the city is not, in my opinion, in any position to draw a different mandate, a different remediation plan."

He said the city could possibly be in position to claim property damages, including trespassing, since the TCE plume affects city rights-of-way, but he said that would still be complicated to prove actual damages.

Asked by Weber about the millions in lost property tax revenues in the area as a result of declined property values, Canfield said those actions were likely to be "not actionable," as well.

"In my opinion, it's not actionable. From a legal standpoint, the city doesn't have a right, a property right in an assessed valuation of the property in Fort Smith that was impacted by it," he said. "(There's not) an established legal right in some assessed valuation. There's no obligation on me as a property owner to maintain or even improve the value of my property in order to sustain some established basis, tax basis. And by the same token, there's probably not a cause of action if someone intentionally destroyed values of property. I'm not aware, for instance, of any legal principal that would say when an arsonist burns down a building, which affects the tax base of the city, that the city has a cause of action against the arsonist."

He said while the city police department could charge the arsonist for burning down the structure, the city would have no right to recoup lost property taxes from the arsonist as a result of the fire.

Speaking to the rest of the Board, Weber spoke of aggravation that the ADEQ and state officials were quick to jump in and protect citizens of Mayflower, Ark., following a recent oil spill, with Exxon Mobil even purchasing some homes damaged as a result of the spill, but in her opinion largely ignoring the concerns of Fort Smith citizens.

"Is there a difference why Mayflower is moving forward at such a speedy rate and we're not?"

Director Mike Lorenz said the difference, in his opinion, was the visibility of the Mayflower spill, a point City Administrator Ray Gosack echoed.

"In Mayflower, it was a surface spill," Gosack said.

"This is underground, you just don't see it," Lorenz said.

"It's just as much a contamination," Weber added.

The Board is scheduled to vote on allowing Whirlpool to place a soil vapor monitoring well at its next meeting on Nov. 5. Vice Mayor Kevin Settle questioned whether the city could vote against that action, as well as prevent Whirlpool from performing oxidation (injection of chemicals to dilute the TCE below the surface), using city rights-of-way or would the state override those actions.

Canfield said the state could use the power of imminent domain to obtain the land for ADEQ to be used by Whirlpool, though he said it was "not a likely scenario."

Director George Catsavis ended the meeting by describing how this situation left him with with "a helpless feeling," to which Director Philip Merry reminded him that at the very least city directors and the public in general "can communicate" their displeasure to ADEQ, putting their criticisms on the public record.

No action was taken at today's study session.

Attempts to have Gov. Mike Beebe or a member of his staff attend the Nov. 12 public meeting were unsuccessful, with Marc Harrison, the governor's energy policy adviser, telling Gosack that the matter was under the jurisdiction of the ADEQ.