CBS Technical Comments on ICS Treatment plant

Re: United States v. CBS Corp.

May 12, 1999

As promised in my April 22, 1999 letter I am submitting on behalf of our client, CBS Corporation ("CBS"), the enclosed technical comments on the design for a water treatment plant at Illinois Central Spring that the U.S. Environmental Protection Agency ("EPA") first revealed to CBS in a meeting on March 25, 1999 ("Revised Design"). ~ In your letter of May 3, 1999, you indicated that EPA refused to delay the construction of the water treatment system even to await the receipt of technical comments that would be forthcoming from CBS in a matter of days. EPA's refusal to consider CBS's comments before making further commitments to construct the system is a failure by the United States to negotiate in good faith about water treatment issues in accordance with the Special Master's Report of January 20, 1999, which was agreed to by all parties and approved by the Court.

CBS's request that EPA consider its comments before committing to a design is reasonable and consistent with the Court's order to continue water treatment negotiations. The statement in your May 3, 19991etter that "EPA kept CBS informed as it made decisions and progress on the design of the system" is simply wrong. Since August 1998, when EPA announced that it intended to construct a water treatment plant, CBS has offered to provide EPA with the benefit of its technical knowledge to assist EPA in formulating a design. Prior to disclosing its Recent Design to CBS on March 25, l 999, however, EPA's only technical communication with CBS about its "interim" water treatment system occurred at a single meeting on January 26, 1999. Moreover, at that meeting, CBS was told that the contractors hired by EPA to design the system had been acting under an internal "gag order" not to talk with CBS. EPA's failure to consult with CBS about design issues - even though all of EPA's information about the flows at Illinois Central Spring came from CBS-is not only a breach of its obligations under the Special Master's Report, but is just plain foolish from a technical standpoint.

Your two letters allow no opportunity for discussion about technical issues, but simply demand CBS function as a construction contractor to build a system to the Agency's design, regardless of its technical merits. Moreover, the two letters make inconsistent demands on CBS. The April 12, 1999 letter states that EPA "offers" CBS the opportunity to "take over work at the site, assuming that CBS can implement U.S. EPA's design and complete construction in accordance with EPA's schedule." But, the May 3, 1999 letter demands that CBS complete the design and construction of the "interim" treatment system "as long as it was built in accordance with EPA's September 30, 1998 Action Memorandum." EPA's Action Memorandum called for a $1.3 million system to be operational by the fall of 1999; EPA's Recent Design calls for a $6 million system to be operational by the spring of 2000.

This inconsistency is at the heart of what is wrong with EPA's Recent Design- it bears no resemblance to an "interim" system, and is radically different from the system EPA described in its Action Memorandum. EPA's $1.3 million proposal of September 30, 1998 for a costly interim system has been scrapped for a $6 million design of a system that is "interim" in name only and ultimately is beyond anything necessary for the site.

Moreover, EPA plans to begin construction of this final system at a time when the Agency, by its own acknowledgement, does not have the information to come up with the most effective or efficient design, or even the most appropriate location for a final system. The Recent Design calls for an immovable $6 million system to be built at Illinois Central Spring, even though the results of CBS's hydraulic conduit study may demonstrate that a system would be more effective if it were located either closer to Lemon Lane Landfill itself or further from the landfill at Quarry Spring. Moreover, EPA has abandoned its original "interim" schedule: EPA now does not expect to have the system completely constructed until the spring of 2000 at the earliest, a year later than originally planned. After construction is complete, a startup and shakedown period that could last for months will follow. Thus, there will be no operable system coming online until two years after EPA announced its decision to build an interim system. Indeed, rather than place its interim system in operation before the excavation work starts at Lemon Lane, as EPA told the Court it wanted to do, EPA's Recent Design is not likely to be operational until the excavation work is well underway.

Your letter of May 3, 1999 suggests that EPA's Recent Design is "flexible" because components of its system might be used for final water treatment. This is not flexibility, but over-design and redundancy - putting in costly extras and duplicating capacity when the Agency does not have the information to know whether these features will be needed in a final system at all. Moreover, EPA has abandoned any attempt at designing a system that could be moved to other locations. What EPA has actually decided to do instead of building the interim system it originally proposed is to adopt the City of Bloomington's approach, as described in Geoffrey Grodner's letter of August 10, 1998, of building a full-capacity final system first, putting it in operation, and then possibly deciding later to shut down portions of the system, if they were shown to be unnecessary (after the cost had been incurred). EPA's Recent Design calls for oversized pumps, tanks, and structures, and redundant equipment when it does not have enough information to know whether they will be necessary. If they are not needed, their expense will simply go to waste. Indeed, EPA has taken the City's approach one step further, by proposing to build an immovable $6 million system that may have to be scrapped if the results of CBS's hydraulic conduit study show that a treatment system will be more effective in another location. EPA's entire approach is ill-conceived, premature and grossly inconsistent with the principles underlying the National Contingency Plan as well as its September 30, 1998 Action Memorandum.

Whether or not CBS takes over the construction of a water treatment system from EPA is irrelevant to the issue of what design makes sense from a technical standpoint. EPA's first concern should be what design is both technically appropriate to achieve its goals and cost-effective, not who pays for it. It makes no sense for the Agency to close its ears to valuable technical information from CBS, simply because it is using government funds to build the system. Indeed, if government monies are being spent on the project, EPA has a duty to the U.S. taxpayers to see that their money is spent wisely. Even if EPA is relying on successfully recouping its expenditures in a cost recovery claim against CBS, such a gross misuse of public resources is inexcusable.

CBS strongly urges EPA to reconsider its decision to construct a system according to this design. CBS requests a meeting to more fully explain the errors in EPA's design and suggest alternatives that are more consistent with the concept of an "interim" system that may be installed more quickly.

1. Background

When the parties began their discussions on water treatment over the spring and summer of 1998, EPA and CBS were in agreement that a water treatment system could best be designed after the excavation at the landfill was undertaken and CBS had completed its hydraulic conduit study. But EPA told the Court that it believed it was important to construct an interim system at Illinois Central Spring sooner, rather than wait until after the excavation work was done. Although EPA and CBS disagreed about what interim system was appropriate, EPA did agree with CBS that the interim system should be designed to be flexible so that as many of its components as possible may be adapted for a final water treatment system, if one was necessary. EPA also recognized that the results of CBS'S hydraulic conduit study may show that a different type of treatment design should be used or that a treatment system might be better placed in a different location (either closer to the landfill or further away at Quarry Spring). Accordingly, EPA told CBS that it was trying to design a system that was movable and could be disassembled into component parts.

At the time EPA proposed its system, CBS had substantial concerns that the proposal would not result in a flexible, portable system that made sense on an interim basis and could be adaptable as a final system. CBS was concerned that EPA's proposal for a $1.3 million system would take over a year to design and construct, and then would only operate for two years before being replaced by a final system. CBS was further concerned that the components of this system might not be usable in a final system and would have to be scrapped. CBS expressed these concerns in its Status Report to the Court of September 10, 1998 and its letter to EPA of November 10, 1998.

CBS suggested instead that a simple gravity-based system be used on an interim basis. This system would have the virtue of being installed in a few weeks or months at low cost, and would reduce the PCB mass discharge by approximately 50%. Although it had a lower capture capacity than EPA's proposal, this system would have been effective in reducing significant amounts of PCBs and would have had the advantage of being installed one year, and now two years, earlier. Moreover, installation of CBS'S proposal would have allowed for increased flexibility in designing a final treatment facility, because there would be no need to try to include expensive existing facilities in the design.

Unfortunately, EPA rejected CBS'S proposal and decided to build a more elaborate interim facility. In its Action Memorandum of September 30, 1998, EPA proposed a design for a system estimated at $1.3 million in capital costs, which EPA planned to have operational during the summer or fall of 1999. Although CBS disagreed with EPA's decision, it offered to consult with EPA on the analysis of spring data it had provided to the Agency and consult with the Agency about design issues.

Neither EPA nor its contractors consulted with CBS as they developed the design. Indeed, at the only meeting that EPA scheduled with CBS to discuss water treatment (on January 26, 1999), CBS learned that EPA's contractors could not speak with CBS about design issues. Although CBS was told some additional information about EPA's design activities at that meeting, CBS was not given the details of EPA's design, and was not told that the capital cost of the design had increased from $1.3 to $6 million, or that EPA did not expect to have its system constructed until the spring of 2000. CBS only learned this information at the meeting on March 25, 1999, and only learned the details of the technical information behind EPA's design in documents provided thereafter.

2. EPA has Abandoned the Idea of Building an Interim System and is Planning to Build a Final System Prematurely without Adequate Information

While there are many technical errors in EPA's Recent Design, most of them flow from one major conceptual error - EPA is really trying to design and build a final system now, rather than wait for information that will only be available after the treatability work is done, excavation is complete, surface water controls are in place and the hydraulic conduit study is further along. EPA's current approach of trying to design a final system prematurely contradicts the position taken by the United States before the Special Master and incorporated in the Special Master's Report. As recently as January 13, 1999, EPA's lawyer, Steven Ellis, in a letter to the Special Master, explained EPA's reasons why designing a final water treatment system should be deferred until after excavation is complete:

If EPA were required to select at this time the permanent water treatment aspects of a remedial action for Lemon Lane and Neal's Landfill, EPA would have to select a more conservative and costly water treatment solution than what may be required after excavation is complete. For those reasons, the United States proposed that the determination of permanent water treatment solutions for Lemon Lane and Neal's Landfill be postponed until approximately one year following completion of source control measures at those sites.

Mr. Ellis further noted that the Special Master had agreed with the parties to defer permanent water treatment negotiations until excavation was complete:

The parties then advised the Special Master of their agreement to negotiate water treatment in two phases; the Special Master agreed that the proposed process is desirable. By metaphor, the Special Master explained that there is significant advantage to '`taking the cancer out of the body and letting the body stabilize" before determining what further treatment, if any, is necessary.

Yet despite its lawyer's statements to the Court just a couple of months ago, EPA is now scrapping the idea of building any type of an interim system - including the $1.3 million proposal it had originally made - in favor of building a $6 million final system without waiting for the additional information that will become available through the treatability work, the excavation work, the implementation of surface water control measures and the hydraulic conduit study. EPA's unilateral decision to plow ahead with a final system violates the commitment made by the parties and incorporated in the Special Master's Report for the parties to negotiate about final water treatment after the excavation of the Landfill is complete. How can the parties have meaningful negotiations at that time if EPA will have already built its final treatment system?

On the issue of the dramatic four hundred percent increase in the cost of the Agency's Recent Design, your May 3, 1999 letter is far from accurate. As described above and in the attached comments, EPA's current cost estimates result from an entirely new approach and design criteria, not from refinements to what was presented to Judge Foster in open Court on August 14, 1998.

Although EPA still calls its Recent Design an "interim" system, any way one looks at the design, it is clear that what EPA now plans to build is a really a final, not an interim system:

• Schedule: EPA does not expect to have the system constructed until the spring of 2000 and operational some time thereafter, two years after it begins the design process, and one year later than it originally projected.2 Moreover, EPA does not expect to have the system operational until after the excavation work at Lemon Lane Landfill is expected to be well underway, even though EPA asked the Court to defer the commencement of excavation work at Lemon Lane until the year 2000, because it wanted an interim system in operation before excavation began. If EPA were truly interested in having an interim system in place as soon as possible, it would have accepted CBS's offer to install a gravity-based system that could be made operational in a matter of weeks and which could have captured significant PCB mass at a cost of about $300,000.
• Location: EPA's Recent Design has predetermined the location of a final treatment system by calling for the construction of an immovable $6 million structure at Illinois Central Spring, built to last at least 20 years. Although EPA originally indicated that it was considering designing portable facilities (e.g., skid-mounted treatment systems), the Agency's Recent Design abandons that approach. Thus, EPA's Recent Design completely disregards the possibility that CBS's study of the hydraulic onduits around Lemon Lane Landfill may identify a better location for a treatment facility than at Illinois Central Spring. One of the major reasons why the parties agreed to defer negotiations over a final system was to await the results of that study so they could be used in designing a water treatment system. The study is examining whether ground water can be intercepted before it leaves the Lemon Lane Landfill. If this can be done, it may be more effective to locate a smaller treatment system closer to the landfill itself. Also, the study is looking at the relationship between Illinois Central Spring and Quarry Springs, which is located further away from the Landfill. There may be a separate conduit that bypasses Illinois Central Spring and emerges at Quarry Spring, or the two springs may be hydraulically connected so that an effort to capture water at Illinois Central Spring may have the unintended effect of diverting the water to Quarry Spring. In either case, it may be more effective to locate a final treatment system at Quarry Spring. But it may be futile to evaluate building a final system at these other locations if EPA has already built a $6 million white elephant at the wrong place.
• Capacity: EPA's Recent Design is based on a January 1997 storm event, which EPA used to construct a model of a 2S year storm event. For various reasons described in detail in the attached comments, this is a poor event to use as a design model for the system, and CBS believes that EPA's contractors made various errors in modeling that event. This mid-winter event is not typical because much of the water flow consisted of melting snow and ice. Thus, EPA's contractors have overestimated the flow of water and underestimated the loading of total suspended solids in creating a model based on this event. But, more importantly, a 25 year event is a poor model for what is supposed to be an interim system that will only be operational for two or three years. As a result of using this model, the Recent Design calls for an excessive pumping capacity - a total of seven pumps with a collective capacity of 9,500 8pm. Based on CBS's three years of continuous flow records for the spring, there was no time during which the spring flowed more than 3,000 8pm. Thus, it would not make sense to build a pumping capacity three times as great as the spring's measured maximum flow rate in a permanent system. It is even more absurd to do so in what is supposed to be an "interim" system intended to last only a few years.
• Retention Tanks: EPA's September 30, 1999 Action Memorandum called for a "2 acre feet collection basin." EPA's Recent Design calls for twice as much storage in two 2 acre foot tanks. First, there is no rationale for creating so much retention capacity in what is supposed to be an "interim" system. Second, by calling for the construction of tanks, rather than building a lined pond as originally intended³, EPA is creating two massive and costly structures. These structures would be immovable and their subsequent use would pose an economically unacceptable engineering dilemma if it were determined that a final treatment system would be better located either closer to the landfill or at Quarry Springs. Third, once the excavation work at the Landfill and CBS's hydraulic conduit study are completed, this much storage capacity may not be needed, especially if CBS is able to intercept the ground water at Lemon Lane Landfill so that only a small amount of water needs to be treated.
• Size and Useful Life of Structures: The structures called for in EPA's Recent Design are over-designed with empty space to house additional unspecified structures. Moreover, they are intended to last for at least 20 years. These are characteristics of a final system, not one of an "interim" system such as EPA claims to be building. Even the Neal's Landfill spring treatment system, which has operated for ten years, is not designed to be so massive and so permanent. These large, immovable structures are antithetical to components of a flexible interim system that can be easily moved and adapted to a subsequent system.
• Filter Press: EPA's Recent Design includes a dedicated filter press for sludge. As explained in greater detail in the enclosed comments, an "interim" system that is supposed to operate for only a few years is not likely to generate enough sludge to justify a dedicated filter press.
• Collection Sump: EPA proposes to build a concrete subsurface sump. It makes no sense to build such a structure in an "interim" system, if the final system may be located elsewhere.
• Cost: The cost of EPA's Recent Design makes clear that this is not truly an "interim" system, but a final system. EPA's September 20, 1998 Action Memorandum called for an "interim system" with an estimated capital cost of $1.3 million. The capital cost for EPA's Recent Design is four times that amount -- $6 million. Moreover, as described in CBS's comments, EPA has failed to take into consideration additional cost items that are likely to increase the cost of construction substantially above $6 million. In addition, EPA's design decisions are likely to result in unnecessarily high operating costs, such as the costs of electricity to heat and air condition an oversized building, and the additional maintenance costs of such an elaborate structure. Mr. Ellis told the Court that "[i]f EPA were required to select at this time the permanent water treatment aspects of a remedial action for Lemon Lane and Neal's Landfill, EPA would have to select a more conservative and costly water treatment solution than what may be required after excavation is complete." EPA's Recent Design is precisely the sort of "conservative and costly water treatment solution" that EPA's lawyer told the Court it was not going to select at this time. Indeed, this appears to be an example of the government designing a $100 hammer or a $400 toilet seat.

3. Other Design Errors

In addition, the enclosed comments identify and discuss a number of other errors in EPA's Recent Design. These errors relate to such aspects of the EPA design as water intake structures, surface water diversion structures, solids removal equipment, Lamella filters, multimedia filters, bag filters, thickener tanks, and the effluent/backwash storage tank. The comments also address construction issues, operational issues, and concerns about overall costs. Rather than repeat these concerns here, we direct EPA to the technical comments.

4. Summary

CBS urges EPA to consider these comments seriously, rather than go ahead with an ill-considered design. While CBS had, and continues to have, substantial differences with EPA over its original plan for an interim system in August and September 1998, EPA now appears to have lost sight of its original goals for an interim system in embracing this Recent Design for what is really a final system. Before moving forward, the Agency should consider seriously what aspects of a treatment system are needed on an interim basis and what aspects are best left to be designed in the future when more complete information is available. It does not make sense to include costly extra features or redundant capacity in an interim system, just because you do not know now whether they will be needed. It also does not make sense to design features for unlikely worst case scenarios in a system that may only operate two or three years. Finally, EPA may want to consider whether a less ambitious system, that can be installed more quickly, is better on an interim basis than an elaborate system that will take two years to build and will not be operational before excavation begins.

CBS continues to believe that the gravity-based system it proposed in July 1998 is the best approach for an interim system because it can be made operational quickly and at low cost, thus providing the flexibilities the parties discussed when they appeared before Judge Foster in 1998. Moreover, EPA's Recent Design even abandons its earlier proposal for a portable, reusable system in favor of an inflexible oversized and permanent system. But even if EPA remains unconvinced of the merits of CBS's original proposal, it should not ignore the serious flaws in its Recent Design simply because CBS brought those errors to EPA's attention. Moreover, it is unreasonable for EPA to demand, as your letter appears to do, that CBS commit to building EPA's design before EPA will listen to CBS's comments on the errors in that design.

CBS is committed to continuing to negotiate with EPA in good faith about a resolution to water treatment issues.4 But such negotiations are unlikely to be fruitful if instead of building any type of interim system, EPA constructs a $6 million final system, that is poorly designed, immovable, and bloated with costly and unnecessary features, before the information is available to properly design - and locate - an effective and efficient final system. Accordingly, CBS requests that EPA reconsider its decision to make commitments to build its so-called interim system without considering CBS's technical comments. CBS is prepared to sit down with EPA to further discuss these issues.

¹ At that meeting, EPA did not have available all the technical documents describing its Recent Design. Those documents have only been provided to CBS in the weeks following the meeting.

² Although the system will be installed in the middle of the year 2000, EPA plans to evaluate it as a "final" system in the year 2001. In essence, EPA is really planning to build the so-called "interim" system over two years and then subject it to a one-year shakedown period before calling it a final system.

³ As described in the comments, if EPA has concerns about birds and wildlife coming into contact with a retention pond, there are other, less costly ways to address those concerns than to build massive retention tanks.

⁴ Although CBS reserves its legal arguments that it is not required under the Consent Decree to implement - or pay for - further water treatment in the event the parties are unable to reach consensus, it has committed to negotiate about these issues in good faith.