Pandemic, flood grant no respite for consent decree for Fort Smith

City Administrator Carl Geffken told the city board Tuesday the city has put in a “force majeure” letter saying both the flood and the pandemic are beyond its control.

FORT SMITH — The federal government said it won’t give the city relief in fulfilling requirements of its consent decree even after it endured both the 2019 Arkansas River flood and the ongoing covid-19 pandemic.

The city has “exhausted all avenues to get a change in the consent decree,” it announced in a news release.

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

City officials signed a consent decree in 2015 with the U.S. Environmental Protection Agency, the Department of Justice and the state agreeing to make an estimated $480 million in repair and upgrades to the city’s wastewater system over the course of 12 years to clear up chronic violations of the federal Clean Water Act.

City Administrator Carl Geffken told the city board Tuesday the city has put in a “force majeure” letter saying both the flood and the pandemic are beyond its control.

“We were told that since the governor of Arkansas, Gov. [Asa] Hutchinson, did not declare a shelter-inplace, that we are not eligible to receive any break,” Geffken said.

Geffken said City Attorney Jerry Canfield of the law firm Daily and Woods and Paul Calamita, chairman of the Richmond, Va., law firm AquaLaw who the city hired in 2016 and whose practice focuses on working with municipalities facing or are under federal consent decrees, filed a motion with the federal court in Fort Smith to have a status conference.

However, the release says the Arkansas Attorney General’s office and the EPA objected to such a conference being held, arguing it would be premature since Fort Smith and the EPA are still in dispute resolution.

“Granted, it’s not in the language of the consent decree, but since we’ve been working on this for threeand-a-half years and presented more information than any other city that our attorney, Paul Calamita, has provided in his last 28 years of service, and given the push with the current administration … to right-size regulations, we have not been one to have been the recipient of that goal of the current federal administration,” Geffken said.

The EPA didn’t communicate, according to the release, when it would send the city its written opinion of the dispute so the city could move forward to get the matter into federal court.

Lavon Morton, Fort Smith Ward 3 director, said Tuesday due to having lost a significant amount of time as a result of the flood and covid-19, he was sure all the other directors and residents would agree with him it’s “absolutely shocking” the city could go through both of those things and a federal agency wouldn’t give it more time to fulfill its obligations.

The news release said since the latter half of 2016, the city has wanted to engage with the EPA for three purposes — revising the consent decree requirements to make them consistent with the city’s revenue, modifying the requirements so the city doesn’t have to fix defects not causing sewer overflows, and, at the urging of the Department of Justice, 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,” the release states. “Senators [John] Boozman and [Tom] Cotton, and Congressman [Steve] Womack have been very supportive and have been working to help the city since we started our efforts to request a modification. …”

However, the release says the ways in which these legislators can help are limited due to the matter being in litigation with the Department of Justice. In addition, the city has reached out to the EPA and sought help from the Arkansas Department of Environmental Quality and the Arkansas Attorney General’s Office, all of which proved fruitless.

“We have initiated dispute resolution with US EPA following the provisions of our consent decree,” the release says. “However, we are at a road block in that the ball is in EPA’s court and [has been since] last fall and EPA simply won’t act.”

The city also alerted the EPA on Feb. 19 it would fall out of compliance with the consent decree this year, with the latter responding that it needs to comply.