More time sought for sewer fixes

Fort Smith official notes effects of pandemic, 2019 flooding

FORT SMITH — The city of Fort Smith is seeking further relief in its efforts to implement required sewer improvements, despite already receiving an extension earlier this year.

After prompting by Ward 3 City Director Lavon Morton, City Administrator Carl Geffken told the Board of Directors during its regular meeting earlier this month that the city — in order to fulfill the requirements of its federal consent decree — is pursuing additional time because of both the covid-19 pandemic and the 2019 Arkansas River flood.

“We were offered one [year], but considering the length of time for covid and the flood, that hardly counts for the amount of time we’ve spent on both of those crises,” Geffken said.

Geffken said the city knows that the effects of the pandemic will continue for a longer period of time than it originally believed.

Fort Smith officials signed a consent decree in 2015 with the U.S. Environmental Protection Agency, the Department of Justice and the state. The city agreed to make an estimated $480 million in repairs and upgrades to the wastewater system over the course of 12 years to clear up chronic violations of the federal Clean Water Act. To aid in fulfilling the requirements of the consent decree, the city raised its sewer rates by 167% from 2015 to 2017.

Fort Smith announced May 8 that the EPA and the Arkansas Division of Environmental Quality had agreed the previous evening that the city had demonstrated that its sewer improvement program will be “inordinately expensive” and qualified for five more years of implementation time on top of the 12 already set forth. They also agreed to grant more flexibility with certain interim deadlines, allowing the city to extend expensive system improvements over the entirety of the remaining schedule.

Geffken said June 2 that the city would file a notice of formal dispute resolution to continue the process regarding the points it has made concerning affordability and “the needs to follow through with the fours and fives for the NASSCO rating.”

On June 4, Geffken said the National Association of Sewer Service Companies offers a pipeline assessment program that provides a standard by which one can assess sewer pipes. It utilizes a rating system of one to five.

City Utility Director Lance McAvoy explained that in this rating system, a one would be “basically new pipe” that has no defects and is properly aligned and put in the ground.

“When you get to a five, you’re dealing with issues that, a collapsed pipe where it’s already broken through and it’s hanging down, that would be an example of a five,” McAvoy said. “That’s the structural. There’s also an O&M, or operations and maintenance, level five that may be that it needs to be cleaned better, or there’s a large root intrusion that you have to remove. So it really kind of tells you the capacity of the pipe to do its job.”

McAvoy said the consent decree states that the city has to come up with a remedial measures plan for all pipe defects rated four or five. The

Department of Justice and the Environmental Protection Agency are stating to the city that the remedial measures plan means it has to replace or fix all fours and fives.

However, McAvoy pointed to Paragraph 18 of the consent decree, which talks about Appendix D of the same document.

“You will rate it, and then you will assess it, and your plan is based on following the guidelines of Appendix D of the consent decree,” McAvoy said. “Appendix D states that if it is a defect of such manner that it causes an SSO [sanitary sewer overflow], or could possibly contribute to an SSO, it needs to be repaired.”

Everything else, McAvoy said, goes into what is called the CMOM — capacity, management, operations, and maintenance — program. This means that the city will revisit pipes that have been rated four or five but that are not causing, contributing to, or may lead to a sanitary sewer overflow on a yet-to-be-determined cycle, then take care of them when funds become available.

The National Association of Sewer Service Companies certification also contains a caveat stating that just because a pipe segment or defect is rated a four or a five, it does not mean that it needs to be immediately replaced or fixed, and that “best engineering judgment” shall be used in determining the proper remedial measure, according to McAvoy.

“We could actually have a three defect that, because it relates to an overflow, we need to fix that really quick,” McAvoy said. “It’s not a four or a five, but we need to fix it.

“We need to look at what’s causing the sanitary sewer overflows, address those first, and then go back and look at what do we need to address after that. That’s where the big difference is, is they’re saying, ‘No, if it’s a four or five, you must replace, you must fix.’ We’re saying, ‘No, the CD says we will follow [the] NASSCO rating system, and it also specifically states we will follow the procedure in Appendix D.’”

Geffken also said the city has for several years made the point of affordability regarding the consent decree. This is based on the fact that the city has raised its sewer rates by 167% since entering into the consent decree, which, according to Geffken, is more than “most, if not all” other cities in the country that are in consent decrees.

“And that, per the requirements of the consent decree, we feel that we have proven that, should we continue along the path as laid out in the consent decree, that their sewer rates would be more than two-and-a-half percent of median household income, which then triggered the extra five years,” Geffken said.

“And DOJ and EPA felt that we had a difference of opinion on what should be included in those calculations, but after some work, DOJ and EPA agreed that … we would be over the two-and-a-half percent of median household income, projected.”

Geffken previously told the Arkansas Democrat-Gazette that Fort Smith has been working in good faith on the consent decree, having spent at least $135 million on fulfilling the requirements over the past five years.