Fort Smith decree much higher than the first estimated cost; the federal government filed a complaint without assessing the damage

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FORT SMITH – Federal and state authorities issued the city’s consent decree before any damage was assessed – and vastly underestimated how much the city would have to pay in the allotted time.

The Department of Justice, the Environmental Protection Agency and the Arkansas Department of Environmental Quality issued a consent decree in January 2015 against Fort Smith for utility repairs after decades of sewage runoff in backyards. water, including the Arkansas River. A Justice Department press release from the date of publication – the only document with an estimate of the plaintiffs, according to Utilities Director Lance McAvoy – says the city would spend “over $ 200 million in the last 12 months. coming years ”to modernize its collection and treatment of sewers.

Between the work done before and after the publication of the decree, the remaining cost is $ 350 million. That brings the cost to around $ 460 million, according to a presentation McAvoy made on August 24 to the city’s board of directors.

The city now has nearly $ 350 million to spend on the decree when the money spent before it is released is accounted for. The city is on a 17-year schedule for Consent Decree repairs following an extension in 2020 after the city proved sewer rates exceeded 2.5% of median household income. However, federal officials are applying the decree as if it were a 12-year timeline, with the understanding that the additional five years are in effect, said city administrator Carl Geffken.

The remaining cost is almost triple the city’s 2021 budget, according to records.

Geffken, who was a city manager in Reading, Pa., During his wastewater licensing executive order, said he had never seen the cost of mandates or similar projects of this scale come close to their estimates. initial costs. McAvoy said he heard the same from officials in other cities with consent decrees. He believes such estimates relieve federal officials of their responsibility, as they may point to a point in the past when the estimate was made.

“From what I have seen talking to other municipalities subject to a consent decree, the federal government will not give you an estimate of the cost, because if you come higher than what they evaluated, that’s a reason for, “You said it would only cost $ 200 million when we negotiated this, so we’re at $ 205 million. You lied to us, it was not a negotiation in good faith ”, he declared.

A request for open files shows that there is no record of the city’s receipt of documents from the federal government assessing the cost of sewer repairs in the city.

“When I got there in 2007 we knew there were problems. Did we know the extent of it? No. Did the federal government know the extent of it? Damn no, ”said Kevin Settle, City Manager of At-Large.

Need vs capacity

When the executive order was filed, the city had allowed more than 119 million gallons of raw sewage to flow into waterways. Many manholes and pumping stations responsible for the overflows are in low-income and minority communities, according to the 2015 release from the Department of Justice.

Since the decree was issued, the city has increased residents’ sewer tariffs by 167% to raise the money needed to pay for repairs.

Carlos Whitmore, hairstylist at Faded Barber Shop, said he was happy to pay for the town’s sewage improvement through his sewer bill. But he also said that a sewer tariff equal to the full cost of the consent decree before and after its publication would likely affect “a lot of people” in the city. He personally expects his booth rental fee at the barber shop to increase as the company’s water and sewer bill increases, he said.

“It’s going to damn double or triple the rate on us,” Whitmore said.

McAvoy said the city must also take its low-income residents into account when discussing rate hikes to pay for the executive order.

Paul Calamita, the city’s legal advisor, told city managers in June that Federal Judge PK Holmes said an 11% annual rate hike would not be enough to take the city off its feet. Trial judge Mark Ford, who replaces Holmes, did not respond to the request for comment.

McAvoy said the total cost was increased by sewer lines rated as close to or near “imminent collapse” because of criteria set out in the decree. Not all pipes that meet National Steel and Shipbuilding Company guidelines should be replaced because engineers are allowed to discern whether collapse is imminent and assess the consequences of a collapse, he said.

Additionally, officials at the August 24 meeting said they would like an additional three years due to the covid-19 pandemic and for the consent decree money to be spent on flood repairs. the Arkansas River in 2019.

Geffken admitted that the city entered into the consent decree because it failed to maintain its sewage system. But he and others want the city to be able to more successfully negotiate the terms and conditions of the decree with the federal government.

“We cannot ask citizens to pay penance for people who made decisions 40 years ago,” Settle said.

The politics of the problem

While the terms of the consent decree itself put a strain on the city, leaders believe state and national politics also play a role in the deal.

The decree was issued on January 2, 2015 – 11 days before Governor Asa Hutchinson took office. He succeeded former Governor Mike Beebe.

Settle, who said the consent decree was not presented to council until the end of the year, said it was rushed because he “was trying to get it done before a new governor and a new attorney general arrive. ” The Environmental Protection Agency and the Department of Justice were operating at the time under President Barack Obama.

Geffken said the position of each presidential administration on environmental issues influenced the progress of the negotiations. He said some jurisdictions take a hard-line stance on the environment while others balance issues with protecting communities affected by the mandates.

Geffken said negotiations under President Donald Trump left him and others optimistic about the future of the executive order. He, 3rd District Representative Steve Womack, R-Rogers, Fort Smith Regional Chamber of Commerce President Tim Allen and Calamita, met with regional EPA officials in September 2020, he said. declared.

He said he made it clear during the discussion that the city wanted to comply with the consent decree but needed more housing.

“One of the deputy attorneys general staff looked at me and said, ‘So you just want them to press a reset button,’” he said. “I said yes.'”

Geffken also worked closely with Womack on the decree. Womack’s office recently said the issue “cannot simply be resolved by a legislative solution.”

The five-year extension was granted by Holmes to the city after negotiations with the Environmental Protection Agency and the Department of Justice, Womack said in a statement.

“I have long said that the decree was too strict – stakeholders must strike a balance between compliance and unfair charges,” Womack said in his statement. “These are points that I will continue to share with the agencies.”

The road ahead

Geffken wants federal officials to ease the burden on the city. But he also wants to comply and make progress on the consent decree.

Geffken said the city has filed an appeal with the Federal Court of Appeal for the 8th Circuit to relax the terms of the consent decree, particularly the number of structures to be replaced. McAvoy hopes they will rule in his favor, allowing his engineers to exercise more judgment on whether to replace the hoses.

The Environmental Protection Agency and the Department of Justice filed a response to Fort Smith’s appeal on Aug. 26 in which they disagreed with the city’s argument, according to court records. Fort Smith responded with its own response filed on September 15.

This discernment, according to McAvoy, will lower the cost of the decree.

“We can’t use our technical judgment to say, ‘You know what? We’re going to be keeping an eye on this, but there are no cracks, there is no movement, everything is aligned. We just have a deformity, “McAvoy says.

Geffken said he and his legal team could weigh the possibility of bringing the appeal to the United States Supreme Court if the appeals court does not rule in favor of the city. McAvoy said the city would risk wasting time and resources if it did, as the Supreme Court chooses which cases it wants to hear.

In the meantime, Settle suggested raising a sales tax to pay for sewer improvements.

“It wouldn’t be a bad idea, instead of trying to add it into our bills,” Whitmore said.

As city leaders continue to negotiate and decide how to proceed with the consent decree, the utilities department continues to try to comply with the consent decree on federal terms, McAvoy said.

“Fort Smith is trying to fix decades of complacency, because you bury a pipe in the ground and everyone forgets about it,” he said.


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