Fort Smith officials expect lawsuit from Feds over Clean Water violations (Updated)

story by Ryan Saylor
rsaylor@thecitywire.com

Editor's note: Updated with changes throughout.

Negotiations with between the city of Fort Smith, the Environmental Protection Agency and the United States Department of Justice have broken down, with the city expecting a lawsuit to be filed by the DOJ by the end of business Friday (Oct. 3) for non-compliance with the federal Clean Water Act.

According to City Administrator Ray Gosack, representatives from the city were prepared to meet with federal negotiators last week in Dallas for three days of meetings regarding the city's efforts to implement wet weather improvements to the city's sewer system.

"One working day before the meeting was to begin, the Department of Justice abruptly canceled the meeting," Gosack said in a prepared statement. "On Sept. 24, the department notified us that the federal government was ending negotiations and were considering the filing of litigation against Fort Smith in federal court."

Gosack added that while the city believes the two parties can find agreement through negotiations on next steps, litigation from the feds is expected at any time. City Attorney Jerry Canfield said while the city expected the filing in the U.S. District Court of Western Arkansas today, no such filing has yet been made. He expects the filing to be made at the court – based in Fort Smith – by the end of business Friday.

In August, The City Wire detailed efforts made by the city of Fort Smith since 1993 when it was placed under an administrative order for violations of the Clean Water Act. Since that time, the city has invested more than $201.2 million improving the city's wet weather system. The city of Fort Smith has invested $201.2 million since 1993 on wet weather sewer improvements and another $150 million or more could be poured into improvements before the city atones for violations of the federal Clean Water Act – bringing the grand total for compliance with the law to $351.2 million.

In a special Thursday (Oct. 2) meeting of the Fort Smith Board of Directors to discuss the situation, Gosack said much of the more than $200 million in improvements has come during the last eight years.

During the meeting, Gosack told the Board that the city had "remediated more than 70% of the chronic sanitary sewer wet weather overflows, have had only (nine) wet weather overflows in the last year, and have additional work under construction or in design to address most of the remaining chronic overflow locations." He further claimed the city had reduced overflows during wet weather situations by 79% from 2007 to 2013.

As for why the feds ended negotiations and plans to file a lawsuit against the city, Gosack said he believed it stemmed from different priorities and realities between the federal government and the city.

"We think the federal government was concerned on a couple of points. One is the amount of work that was going to be done by the city of Fort Smith. And our concern was the affordability issue and the community's ability to pay."

He explained that affordability was taken into account when determining the level of work needed to be completed once the city agrees to a consent decree, which Utilities Director Steve Parke has previously described as "more of a contract format."

"We were concerned about the community's ability to pay for the amounts of work that the federal government was expecting to be accomplished," Gosack added, providing some insight into negotiations between the city and the feds. Gosack and Canfield have continued to insist that details of the negotiations are confidential by mandate of the federal government.

Asked by City Director Pam Weber how much it would cost for the city to simply comply with the demands of the federal government, Canfield said the figure was confidential.

"We may be getting into areas of the negotiations," Canfield said. "There have been extensive negotiations about what the requirements are and the cost of those. The affordability analysis. … I think in that format, it's probably a question that gets into the negotiations that we shouldn't answer."

Gosack added that the city had estimates, but declined to provide those.

But in August, Parke told The City Wire that another $150 million or more could be poured into improvements before the city would be in compliance with the Clean Water Act and out from under the thumb of the federal government. In all, that would bring the amount of money spent by the city on wet weather improvements to $351.2 million since 1993.

Gosack said the city is prepared to move forward on improvements – including projects underway at Navy Road, Jenny Lind and Zero, and Mill Creek – regardless of what action the federal government takes against the city. But it means the city is likely to impose fee hikes on its 30,607 sewer customers, he added. With the increases, Gosack said they are likely to be made incrementally over time, but could be imposed as early as 2015.

Of the more than $200 million already invested in the system, sales taxes were collected to pay off bonds financed for the projects. With the planned rate increases, Gosack said those should be made public "in a few weeks."

Even though the city is working to prevent wet weather overflows, Gosack did say a major problem now that is noted with the federal government is general overflows that occur due to tree roots growing into the sewer lines or grease or other foreign objects ending up in the line. Parke said should overflows continue happening, there is the possibility of fines totaling $32,500 per day for each violation.

Canfield said once the federal government files suit against the city of Fort Smith, the city will have 30 days to file a response.

Below is the full statement from the office of City Administrator Ray Gosack.

For the last 8-1/2 years, the City of Fort Smith has been in negotiations with the U.S. Department of Justice and the Environmental Protection Agency regarding sanitary sewer system wet weather overflows.  During periods of heavier rainfalls, stormwater enters the sewer system through defects in manholes and underground pipes and overwhelms the capacity of the sanitary sewer system.  This causes untreated sewage to overflow from the system.  The purpose of the negotiations and contemplated consent decree with the federal government has been to bring Fort Smith into compliance with the federal Clean Water Act.

We were scheduled to meet with the federal negotiators in Dallas last week for 3 days for what we believed would be the final negotiations.  One working day before the meeting was to begin, the Department of Justice abruptly cancelled the meeting.  On Sept. 24, the department notified us that the federal government was ending negotiations and were considering the filing of litigation against Fort Smith in federal court.  We continue to believe that negotiation of a consent decree could be successfully completed, and have communicated that to the Department of Justice.  Nonetheless, we expect the federal government to file its litigation at any time.

Our purpose this evening is to brief the board and community on the progress we've made over the last several years and our commitment to continue solving the problems.  We've remediated more than 70% of the chronic sanitary sewer wet weather overflows, have had only 9 wet weather overflows in the last year, and have additional work under construction or in design to address most of the remaining chronic overflow locations.  As shown on the maps, we have reduced the number of wet weather overflows by 79%.  The City of Fort Smith has spent and is committed to spend over $200 million to achieve this progress toward complying with the Clean Water Act.  The locations where much of this work has occurred are shown on the map.  Not coincidentally, the areas where overflows have been reduced are the same areas where significant work has occurred.

Regardless of any federal litigation, we are committed to continuing improvements to the operation of Fort Smith's sanitary sewer system.  Gathering wet weather flow data in the system to identify needed improvements and evaluate system performance, constructing capacity improvements to handle increased flows during wet weather conditions, eliminating sources of wet weather inflow and infiltration into the sewer system, and enhanced maintenance of the sewer system have been and will continue to be our priorities.  We have over $30 million in construction work underway or upcoming.  We are also planning to enhance maintenance of the sanitary sewer system to reduce the occurrence of overflows during dry weather normal operating conditions.  While we've experienced only 9 overflows due to wet weather conditions during the last year, we've experienced approximately 180 overflows due to blockages in sewer lines during dry weather periods of normal operation.  Many times, these blockages are caused by tree roots invading the sewer lines or by the build up of fats, oils and grease deposited by consumers into the sewer system.

The city must enhance its maintenance and public education efforts to alleviate overflows caused by blockages in the sanitary sewer system.  Planning for these programs is underway and will continue.  We will be discussing the specifics of this, including the impact on sewer rates, in the coming weeks.

All of the current and future efforts are affected by affordability.  Affordability takes into account the community's ability to pay, and is a factor which must be considered in determining the amount of work to be undertaken and how fast it will be accomplished.  Affordability affects the city's work programs, and is a consideration of which the city has been and will continue to be mindful.

Regardless of any pending litigation, the City of Fort Smith remains steadfast in its work to address the decades-old problems with its sanitary sewer system.  We've made substantial progress and will continue our efforts.  Our goal is to be in compliance with the federal Clean Water Act and to provide safe and environmentally responsible sanitary sewer services to our 87,000 residents and thousands of businesses.

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