Documents reviewed by The City Wire show Fort Smith city officials knew about Whirlpool's plan to request a groundwater well ban as early as June of last year and that Whirlpool may not have been forthcoming with the city or the Arkansas Department of Environmental Quality about its request.
According to an e-mail dated June 13, 2012, from Fort Smith's Director of Development Services Wally Bailey to City Administrator Ray Gosack and other recipients, he and Deputy City Administrator Jeff Dingman met on June 5, 2012, with Whirlpool's Fayetteville-based attorney, Robert Jones III and Amber Prince. At the time, Jones informed Bailey and Dingman of the trichloroethylene (TCE) contamination caused by Whirlpool during the 1980s. TCE can be cancer-causing if ingested, Whirlpool said.
"Their apparent purpose is for the city to pass this ordinance and help them with the sale of the property and future responsibility of the problem," Bailey wrote to Gosack.
According to Bailey's e-mail, Jones had already prepared his own draft ordinance that he wanted the city to use when it came before the Board of Directors.
During the meeting with Jones, Bailey had requested information from ADEQ regarding the contamination of the neighborhood north of Whirlpool's manufacturing facility.
‘ADEQ WILL BE SATISFIED’
In a June 8, 2012, e-mail to Bailey and Dingman, Jones said Whirlpool did not have written contact with ADEQ about the issue.
“We have no written communications in any form from ADEQ; however, it is our information and belief that if no water well drilling is permitted with either restricted covenant and deed or by city ordinance in the affected area, ADEQ will be satisfied,” Jones noted in the e-mail.
That was a surprise to Mostafa Mehran, an engineer with ADEQ, who was working with Whirlpool on the contamination issue.
In another e-mail between Bailey and Gosack with Dingman and others copied, it was clear that ADEQ had not discussed the groundwell ban with Whirlpool and did not know who Jones was.
"He is not aware of any conversations about the well drilling prohibition or any plan that has been submitted concerning a long range mitigation or assignments of responsibility regarding the existing groundwater contamination problem," Bailey wrote. "He was not aware of Mr. Bob Jones. He was surprised that his normal contact from Whirlpool was not making the contact with ADEQ or the City."
A letter from Jones to Bailey on Aug. 29, 2012, says definitively that ADEQ had no policy saying a groundwater well ban was an acceptable institutional control.
"We have confirmed that the Arkansas Department of Environmental Quality ('ADEQ') does not have a written policy or guidance that specifically states a ban on the installation of groundwater wells is an acceptable institutional control," he wrote.
"We feel confident that the proposed City of Fort Smith ordinance should satisfy and be acceptable to ADEQ for our intended purpose," Jones wrote.
COMMUNICATION ISSUES
The revelation from Bailey's e-mail and the subsequent letter from Jones was not the first instance of Whirlpool's lack of communication or possible misleading information being presented to the city.
When Jones appeared before the Board of Directors on Feb. 12 of this year, he and environmental consultants for Whirlpool claimed that the TCE plume was stable and not moving.
But a letter from ADEQ that eventually surfaced, dated 20 days prior to the Feb. 12 meeting, raised the possibility that the plume may still be moving, which led to a stinging rebuke from Director Keith Lau.
"They left us with an abandoned manufacturing facility, took production out of the country and left us with a problem," Lau said.
LEGAL ISSUES
Also included in the documents provided to The City Wire was a July 20, 2012, letter from the city's attorney, Jerry Canfield, to Bailey, where he discusses coming up with legal reasons to impose the drilling ban at Whirlpool's request.
"We have given consideration to the legal theories which might be put forth to justify the prohibition of drilling and installation of groundwater wells. Although we have not researched the issue, it might be possible for the City to prohibit the use of water from groundwater wells within the City based on the City's providing of a public, potable water supply because of (1) the economic necessity of universal use of the City's provided potable water supply or (2) enhanced health factors, or a combination of the two," Canfield wrote. "However, as the ordinance does not propose a City wide prohibition in support of the city's potable water supply, we assume that the ordinance will be supported by a different rationale."
Canfield also raised the possibility that the city may be challenged to pay money to property owners for taking away their groundwater well drilling rights.
"The City could be challenged by property owners who contend the City's action is not a proper police power regulation but rather a ‘taking’ of a property right which requires just compensation.
"The City may wish to discuss with Whirlpool an indemnity agreement protecting the City from any liability from claims that the requested ordinance effectuates a 'taking' of a property interest for which just compensation must be paid. We not that the value of the property right to drill and install a water well may be small."
In Jones' Aug. 29 letter to Bailey, he addressed the indemnity issue, stating it would need to be favorable to Whirlpool.
"Regarding the indemnity agreement you propose, Whirlpool is amenable to executing an indemnity agreement with terms that are acceptable to Whirlpool. I understand Jerry Canfield is preparing this and I await his final draft," Jones wrote.
WHIRLPOOL MEETING WITH RESIDENTS
As the year went on and the ordinance was drafted, Jones appeared ready to bring it to the Board of Directors for a vote.
But an Aug. 6, 2012, e-mail from Gosack was clear: no vote would happen without Whirlpool notifying area residents.
"Not until there's been a meeting with the neighborhood to explain it to them," Gosack wrote in an e-mail to Bailey when asked if a decision had been made to present the ordinance to the Board.
Speaking by phone Thursday, Gosack said he required such a meeting so there would be transparency in the process.
“Before we scheduled this matter for the Board's consideration, we wanted to make sure Whirlpool had met with property owners and dealt with this matter with them,” he said. “I think that's what created the current interest in this problem was requiring Whirlpool to have that neighborhood meeting and even though Whirlpool had sent notices previously, and I haven't seen those, so I don't know what they've seen, but I don't think people knew the seriousness (of the problem).”
ERIN BROCKOVICH INVOLVEMENT
According to a Board of Directors meeting packet from Feb. 12 of this year, the same day Jones made his initial presentation of the ordinance, only five people showed up to that meeting with Jones and three others, including Robert Karwowski of Whirlpool.
One of the neighborhood property owners in attendance was Debbie Keith, who helped lead the effort to get getting the Erin Brockovich Firm to become involved in the contamination issue. The Brockovich Firm is conducting independent tests in the area to see if the TCE contamination is spreading and to see if other pollutants may be in the area.
Gosack said he did not believe any city officials were at the meeting.
The vote for a groundwater well ban eventually failed when voted on by the Board of Directors in March.
Whirlpool is working with ADEQ on a mitigation plan for cleanup at the site.
OTHER WHIRLPOOL PROBLEMS
But the troubles in Arkansas are hardly the only problem Whirlpool is facing at the moment. On Tuesday, a group of residents in Clyde, Ohio, filed a class action lawsuit against the company.
According to a report that appeared in the Sandusky Register, “the families of five young people who died of cancer in the Clyde area filed a federal class action lawsuit against Whirlpool Tuesday claiming that dumping by the company caused the five deaths and numerous other injuries.”
It is the second lawsuit filed this year against Whirlpool that involves an alleged cancer cluster.
"The lawsuit accuses Whirlpool of disposing of chemicals from the manufacturing process 'in a dangerous and negligent way so as to kill said plaintiffs' children and others similarly situated. It mentions chemicals found in the former Whirlpool Park and the presence of a chemical, benzaldehyde, which apparently traveled through the air and was found in dust taken from attics in Clyde homes," the Register's Tom Jackson reported. "The lawsuit also alleges what Whirlpool officials made false statements when they denied knowing that PCBs and other chemicals were dumped in Whirlpool Park in Green Springs."
According to the Environmental Protection Agency, polychlorinated biphenyl (PCB) has "been demonstrated to cause cancer, as well as a variety of other adverse health effects on the immune system, reproductive system, nervous system, and endocrine system."
Legal action has not yet been sought by any Fort Smith area residents against Whirlpool, though at a town hall meeting, many former employees and residents around the facility discussed ongoing health problems.
A call to Whirlpool seeking comment was not returned.