Directors won’t appeal decree ruling
Decision expected to cost city additional $140 million
FORT SMITH — City directors won’t appeal a court ruling over the city’s sewer system consent decree, which is expected to cost an additional $140 million in project work.
A three-judge panel of the U.S. 8th Circuit Court of Appeals ruled in September the decree signed by the city specifies all projects be completed as soon as technically feasible, but no later than four years after a project was first identified, according to the case summary.
The summary says if there’s any ambiguity in the terms of the decree, the city must take active measures to fix the problems.
Chief Judge Lavenski Smith of Hope and judges Duane Benton of Kansas City, Mo., and Jane Kelly of Cedar Rapids, Iowa, served on the panel, and denied the city’s appeal 3-0.
The city entered into the decree in January 2015 with the U.S. Department of Justice, the Environmental Protection Agency and the Arkansas Division of Environmental Quality. Under the decree, Fort Smith agreed to repair and upgrade its sewer system after decades of sewage runoff into waterways, including the Arkansas River.
The city agreed to spend more than $200 million over the next 12 years to upgrade its sewer collection and treatment.
The original decree deadline was Jan. 2, 2027, but the city said it couldn’t afford to do all of the work by that date and was granted a fiveyear extension.
The city argued in the most recent lawsuit engineering judgment should be used to determine which pipes to repair or replace and which to include in its maintenance program.
City Administrator Carl Geffken told the directors the cost of the decree would have been reduced by an estimated $140 million if had the city prevailed at the Appeals Court.
“Really, the core of the 8th Circuit was not being able to use engineering judgment on fours and fives, because there’s some fours and fives that the pipe is just misshapen, but it has structural integrity. That’s something we’d say is OK, let’s monitor it, but not just have to replace it. We
know it’s going to need to be replaced, but maybe it doesn’t need to be done immediately. Maybe there’s a worse pipe in another basin that we know is undersized and needs to be replaced, because after an assessment it’s got a crack in it,” Geffken said.
The fours and fives Geffken referred to is the National Association of Sewer Service Company’s ranking system used to determine the quality of the pipes. He said under the court’s ruling, in that example, the city would have to fix the misshapen pipe first before being able to fix the one with a crack in it.
Geffken said the total estimated cost of the consent decree is $635 million.
City Attorney Jerry Canfield said at the director’s meeting Tuesday the city’s options are to ask the three-person panel to reconsider, appeal the case to the entire 8th Circuit Court, petition the U.S. Supreme Court or decide not to appeal.
Ward 1 Director Jarred Rego said the 9th Circuit Court, which statistically takes the most cases, recently agreed to hear 12 cases out of 972 petitions, which is a roughly 1.23% acceptance rate .
Ward 3 Director Lavon Morton said the Supreme Court also hears about 1% of the cases petitioned, which typically have national implications requiring an interpretation of the U.S. Constitution. He said it doesn’t make sense to appeal a case that has no chance of being heard.
“We tried really hard, we’ve had good attorneys, we made good arguments based on what we had to work with, really good arguments, I just think that there’s no need to waste more time and money on legal arguments,” Morton said. “We need to start planning to get the consent decree accomplished.”
Morton also asked a map showing what has been completed on the consent decree work, what’s being done and what’s left be made and presented at a board meeting so residents can see.
Geffken said that project is underway.
Utilities Director Lance McAvoy said he speaks with the Environmental Protection Agency and the Department of Justice on a daily basis in hopes of building a relationship and explaining why the consent decree needs to be extended.
“We’ve also gone through several DOJ lawyers, we’ve gone through different people at the EPA, so it’s almost like every time we think we’re getting somewhere there’s a personnel change and we’ve got to start all over. That slows things down as well,” McAvoy said.
Mayor George McGill said he’s also had productive discussions with the EPA, and he wants the city to focus on communicating and collaborating with them on the consent decree.
“Rather than aggravate the situation by going to court again and again, I propose that we cease the fighting in the court and work directly with the people who can make a difference, provide us some great opportunities, provide us to take on expertise to get these things done,” McGill said.
The decision to appeal was denied in a 2-5 vote, with directors Kevin Settle and George Catsavis voting for it, and directors Rego, Andre Good, Morton, Robyn Dawson and Neal Martin voting against.