Fort Smith tells EPA it will fall short on consent decree, ‘ball is in the EPA’s court’

by Tina Alvey Dale ([email protected]) 1,280 views 

Though the feds aren’t giving the city of Fort Smith a break on the estimated $480 million consent decree despite the impact of historic flooding in 2019 and the ongoing COVID-19 pandemic, the city and the area’s congressional delegation are still working for some relief.

After years of failing to maintain water and sewer infrastructure to federal standards, the city entered into a federal consent decree with the EPA and DOJ in late 2014. The consent decree requires the city to make an estimated $480 million worth of sewer upgrades over the course of 12 years. Funding for consent decree work has come in part from water and sewer bill increases, which are up 167% since 2015. Funding for water and sewer work also comes from bonds supported by sales tax revenue and revenue from wholesale water buyers.

City Administrator Carl Geffken said the city has sought – since the second half of 2016 – to engage with U.S. Environmental Protection Agency to revise the consent decree requirements so they are consistent with the city’s available revenues; modify the consent decree requirements so that the city does not have to fix defects that are not causing sewer overflows; and at the United States Department of Justice’s urging, request more time to comply.

“The city has left no stone unturned in its efforts to get relief from the no longer appropriate consent decree requirements and the unaffordable costs those unfunded federal mandates represent,” Geffken said in a media release Wednesday (April 22).

Answering a question from Fort Smith City Director Lavon Morton at the end of the board of directors’ regular meeting Tuesday (April 21), Geffken said the EPA and the U.S. Department of Justice decided to not provide the city consent decree relief. Morton specifically asked if the city could get some relief on the timing of the consent decree considering 2019’s record flooding of the Arkansas River and this spring’s COVID-19 pandemic, both of which have required significant resources and time by the city and were major events beyond the city’s control just 12 months. Geffken told the board, no.

“We have put in the force majeure letter saying that the flood and COVID-19 is beyond our control. … We have been told that since the governor of Arkansas, Gov. (Asa) Hutchinson, did not declare a shelter in place that we are not eligible to receive any break,” Geffken said.

Geffken’s statements to the board Tuesday night were to relay frustration with the EPA, not to lay blame on the governor, he said.

“I support the Governor’s decisions 100%, and they have been right for Arkansas,” he said.

He added that the city has exhausted all avenues to get a change in the consent decree.

“We have properly put the agencies on notice of where we will come up short this year. The ball is in the EPA’s court to act on our modification and time relief requests. Hopefully, they will get around to being reasonable,” Geffken said. “If not, it is only fair that they act so we can proceed to the Federal Court to seek relief.”

Geffken said the city has reached out to U.S. Sens. John Boozman, R-Ark., and Tom Cotton, R-Ark., and U.S. Rep. Steve Womack, R-Rogers, all of whom “have been very supportive and have been working to help the city since we started our efforts to request a modification.”

“Unfortunately, they are limited in how they can help because the matter is in litigation with the U.S. Department of Justice,” Geffken said.

Alexia Sikora, Womack’s communications director, said the representative’s office has worked with Fort Smith officials for years as the city and federal government work towards an agreement.

“Congressman Womack has and will continue to assist and support Fort Smith through this matter in any capacity possible. The end goal remains securing an agreeable outcome in the future,” she said.

Likewise, Boozman’s senior communication advisor, Patrick Creamer, said because the decree is a legal matter between the city and the federal government, there is a limited role Boozman can undertake.

“He has advocated for Fort Smith and supports its leaders, but Congress is not able to make final decisions to resolve this issue. He is committed to continuing to bring both parties to the table to carry on the consent decree discussion,” Creamer said.

The city has reached out to the EPA relentlessly, Geffken added.

“We have exchanged literally hundreds and hundreds of emails, calls, and several meetings with EPA to no avail whatsoever. We have sought help from Arkansas DEQ (Department of Environmental Quality) and the Arkansas Attorney General’s Office – both to no avail,” Geffken said.

The city also initiated dispute resolution with EPA following the provisions of the consent decree, but met with a roadblock because “the ball is in EPA’s court and has been since last fall and the EPA simply won’t act,” he said.

On Feb. 19, the city notified the EPA that the city would fall out of compliance with the consent decree later this year. The EPA responded that the city needed to comply, the media release said. Geffken said that in an effort to break the impasse, the city, through its attorneys Jerry Canfield, city attorney, and Paul Calamita, with Richmond, Va.-based AquaLaw, with which the city has a contract for work specifically dedicated to the consent decree, requested a status conference in federal court March 8.

“Both the Arkansas Attorney’s General office and USEPA objected to the Court holding a status conference arguing that it would be premature given that Fort Smith and the EPA are still in dispute resolution. The EPA did not say when they would send Fort Smith EPA’s written opinion of the dispute so that Fort Smith could then move forward to get the matter into federal court,” Geffken said.

On March 19, the city asserted a general force majeure regarding its ability to comply with the consent decree due to COVID 19. The EPA has not responded to that notice.

“However, on April 3, the (Department of Justice) attorney handling this matter questioned the assertion of force majeure given that, at the time, there was no ‘stay-at-home’ order in Arkansas. That is the last we have heard from DOJ on our request for relief,” Geffken said.

Geffken met Jan. 29 with Region 6 EPA Administrator Ken McQueen in Dallas to argue the city’s case for federal consent decree relief. Geffken said that meeting, in which he pled the city’s case, “went well” and McQueen “seemed sympathetic” to the city’s situation. In arguments for relief, Geffken referenced that Fort Smith has a 25% poverty rate and 25% of the children in Fort Smith schools suffer food insecurity.

“Our median household income is not $40,000, or we have not seen results of that. If it is that, it would be a 9.5% jump in one year,” Geffken said. “We are at or near 2% guideline level set by the government (regarding the amount of the medium income that can be dedicated to water and sewer bills.)”

Calamita told Fort Smith city directors during a Jan. 28 presentation the city has made a “tremendous commitment” toward fixing sewer system issues mandated by a federal consent decree and it may be time to ask a federal court for relief. The city has spent at least $135 million on sewer system improvements since 2015 because of the federal mandate.

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