- REEKING CROSSTIES: Neighbors to the Union Pacific property that receives creosote-soaked timbers complain of the smell.
Drive the residential streets of Argenta in North Little Rock and you'll see it's clearly a neighborhood on the rise: shady lanes and tidy clapboard houses, many of the porches appointed by chairs for sitting on summer nights. But some residents on the western edge of the neighborhood say that since 2012, an industrial supplier of creosote-coated crosstie assemblies just across North Broadway from the neighborhood has regularly raised a stink so noxious — described by one resident as "being smothered with mothballs" — that it drives them indoors 10 days a month or more. City officials, citing the decades-old industrial zoning of the property, which is owned and leased by Union Pacific Railroad, say there's nothing that can be done to mitigate the stink by either code enforcement or in the courts. Some residents have moved out. Others are thinking they may have to follow if something isn't done.
A call to Nevada Railroad Materials, the Ogden, Utah, company that leases the property at 601 N. Broadway in North Little Rock, went unreturned at press time. A spokesman with the city of North Little Rock said the NRM facility puts metal caps on new crossties, which are shipped to the facility by the thousands. Before arrival, each crosstie is soaked in creosote, a smelly, dark brown derivative of coal tar that has been used to protect railroad crossties and utility poles from rot and wood-eating pests since 1948.
According to the Centers for Disease Control and Prevention's Agency for Toxic Substances and Disease Registry, long-term, low-level exposure to the vapors of creosote can result in "increased sensitivity to sunlight, damage to the cornea, and skin damage such as reddening, blistering, or peeling," along with irritation of the respiratory tract. Both the U.S. Environmental Protection Agency and the International Agency for Research on Cancer say that creosote is a probable human carcinogen.
A December 2014 report by North Little Rock City Attorney C. Jason Carter found that of 16 Argenta residents who agreed to be interviewed during an investigation into complaints about the smell from NRM, "one half of those interviewed complained of eye irritation, sore throats, and/or sinus issues to some degree," with residents reporting the smell was strongest on humid or damp days when the wind was out of the west/northwest. Carter's report goes on to say that spot monitoring in the neighborhood by the North Little Rock Police Department on six occasions detected little to no creosote smell.
Carter wrote that even in the face of resident complaints, it would be difficult or impossible to prove the smell from the facility fits the legal definition of a nuisance. "The complaints about NRM come from a relatively small group of citizens in a limited area of the city," Carter wrote. "It would be difficult to demonstrate that the condition constituted a public nuisance, thus justifying government action."
After noting that residents could bring a lawsuit against NRM for creating a private nuisance (after which Carter notes that the person who brings the lawsuit would be liable for NRM's legal fees if the suit doesn't prevail), Carter concludes by saying it's his opinion that the city should not issue public nuisance citations to NRM, and that "a civil case against NRM is too flawed to proceed."
Nathan Hamilton, a spokesman for the city, said that based on the opinion of the city attorney, he believes it would be "kind of a lost cause" to attempt to regulate the smell from NRM as a public nuisance. "For three years, the city has been trying to address these concerns," Hamilton said. "Legally speaking, there is not much that we can do, just to speak plainly. We've investigated the legal remedies.
While Hamilton said the city believes residents' complaints are valid and accurate, the question faced by the city is: How do you regulate a periodic smell? "If someone lived next to a cookie factory, it could be the strongest smell in the world, and nobody would be offended by it," he said. "If you live next to the railroad, you're going to get some railroad smell and you're going to be offended by it. But it's very difficult to legislate that."
Another issue, Hamilton said, is how long Union Pacific has been in North Little Rock and the longstanding industrial zoning of the property on which NRM sits. "The railroad yard has been there longer than the city has been there," he said. "We built up around that railroad yard. They're zoned I-3, which means, by right, they have every right to do railroad activities. That's considered a railroad activity ... . They have these rights that get grandfathered in."
Even though Hamilton says the city believes legal and zoning remedies are a dead end against NRM, other solutions are being considered. Since early May, the city has been conducting a three-month trial of a portable device called an atomizer, a technology developed to mitigate smell from landfills. "It's something we put up at the edge of the property that sprays out [chemicals] to capture the stuff before it hits the neighborhood," he said. "It cost $5,000 to set it up. It's a mobile unit. We're testing it out to see if it works. If it works, maybe the solution is to buy three or four of them, permanently, to put up there."
Patrick Stair has lived in the 400 block of West Fifth Street since 1999. He's been a leader in the grassroots fight against the mothball-like smell from NRM, which he said will "knock your socks off" when it's bad, up to 10 days a month. His efforts include accepting resident complaints through a special email address, firstname.lastname@example.org. Over the years, he has received over 700 complaints from residents about the issue. He collates them on a spreadsheet by time and location, and sends the city a monthly report. He said some of his neighbors have already moved away from Argenta because of their frustration over the problem, and others are considering it.
"At first, I tried to work with NRM and the city," Stair said. "I thought they should know when things are going badly so they could try to figure it out. I assumed that they would try and reduce the odor and that we'd work together. So what I needed was a record of when it smelled bad so I could say, "Gee, it smelled bad that day, and that's the day after we got a load in,' or 'Gee, we changed where we stored them and look, the complaints went down.' But that hasn't worked out that way. NRM, after one meeting with another neighbor and me, quit responding to us. That was in February of 2013." Stair said that at that meeting was an NRM vice president, a Union Pacific official and two railroad lawyers. The meeting turned frosty, Stair said, soon after the neighbor who was with him suggested that maybe they should have brought lawyers of their own.
Asked about the reports from North Little Rock inspectors who detected little to no smell during random spot checks in the neighborhood, Stair said he believes the randomness of the checks was the issue.
"The problem is, it's not a continual smell," Stair said. "Sometimes we'll have a whole day of smell. There will be days you get numerous complaints from 6 in the morning to 10 o'clock at night ... . The problem with the city, and I've pointed this out to them, was that they weren't responding to our complaints. If you have a barking dog, that's when the city sends an inspector: when the dog is barking. You don't randomly go and listen to barking dogs. It's a response."
While Stair is hopeful about the trial run of the atomizer system (which he said his neighbors jokingly call "The Febreze Solution" after the popular consumer deodorizing spray), residents were not told by the city when the trial of the device started and have not been told when or how long it is being turned on, so they have no way of knowing whether it's working.
Stair said he understands attempts at negotiations between the city and NRM have fared no better than his own meeting with NRM, with NRM "basically threatening legal [action] if the city took any legal action against them, because they had zoning rights to be there." But he disagrees with the idea that the city has done all it could and that efforts at using the courts or zoning to regulate the smell from NRM would surely fail.
"Union Pacific is zoned I-3, which is pretty much anything goes industrial," he said. "But if they wanted to set up a petroleum refinery there, or set up a rendering plant or any number of truly noxious industrial facilities there, I can guarantee the city would find some way to stop them from doing it, and would be successful at it. There are a number of things that you just would not put in the middle of a residential area."