ILLINOIS POLLUTION CONTROL BOARD

October 1,

1992

DEPARTMENT

THE

 ARMY,

)

PCB 92—107

v.

 (Variance)

)

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

OPINION AND

ORDER

THE

BOARI)

(by

Forcade)

This matter comes before the Board on a petition filed on

July 20,

 1992,

 for extension of the variance granted in Board

order PCB 87-38.

 The variance was granted in September of 1987,

amended on November 8,

 1990 (PCB 87—38)

 and May 21,

1992

 (PCB 91-

113).

 The variance expired on September 4,

 1992.

 The Department

of the Army

 (Army),

 in its petition, waived its right to a

hearing and no person filed an objection to the variance,

therefore no hearing was held in this matter.

 The Environmental

Protection Agency

 (Agency)

 filed its recommendation on August 14,

1992.

 The Agency recommends that the variance be granted with

conditions.

 No briefs were filed in this matter.

The petition requests that the records, opinions and orders

of the prior proceedings be incorporated.

 In a Board order dated

September 3,

 1992, the Board held that it would incorporate the

opinions and orders from the prior proceedings but would not

incorporate the entire record from the prior proceedings.

The

Board further instructed the Army that it could petition the

Board to incorporate additional material by filing a new motion

along with copies of the material to be incorporated pursuant to

the Board’s regulation at Section 101.106.

 The Army has not

filed a subsequent motion for incorporation by reference.

BACKGROUND

The Army requests an extension of the variance granted in

PCB 87-38, dated September 17,

 1987, as amended by Board order

dated November 8,

 1990 and as amended in PCB 91—113

 (May 21,

1992).

 In PCB 87-38, the Army was granted a five year variance

from 35 Ill. Adm. Code 304.1.05, Violation of Water Quality

Standards, as it applies to the following Sections: 302.203,

Unnatural sludge; 302.206 Dissolved Oxygen; 302.208, Chemical

Constituents only to the extent it concerns the standards for

total

 lead, total cadmium and total hexavalent chromium~and

302.212, Ammonia Nitrogen and Un-ionized Ammonia.

 The variance

granted in PCB 87-38 was an extension, with some modifications,

of the three year variance previously granted to the Army in PCB

84-86, dated October 25,

 1984.

 The November 8,

 1990, order in

0136-0233

2

 PCB 87-38 extended the Army’s deadline to submit plans and

specifications, to the Agency, for achieving compliance with the

applicable regulations from December 1,

 1990 to December

1,

 1991.

In PCB 91-113, the Board amended some of the testing procedures

required by the variance.

The purpose of the variance is to allow the Army to continue

its program of maintenance dredging in .portions of the Illinois

River to ensure that the river remains navigable.

 The need for

maintenance dredging was explained by the Board in PCB 84-86:

(t)he Illinois River is a main pathway for commerce.

When sedimentary material accumulates on the bottom of

the River navigation may be impeded.

 Unless the

material is removed the build—up of sediment could stop

river commerce.

 Dredging to remove the sediments may

be done by mechanical means, such as clamshell,

backhoe, and dragline, or it may be done by hydraulic

means, such as cutterhead pipeline.

 The material

dredged from the river (sediments and water) may then

be disposed of in the waterway (open water disposal),

on the shore (bankline disposal), or in a confined

disposal area.

 Both the dredging operation and the

disposal operation may have adverse water quality

impacts.

 Several factors may influence these impacts

including characteristics of the material to be dredged

(sediment and ambient water), method of dredging,

method of disposal, hydrologic and meteorologic

 conditions.

 Army contends that it essentially has no

control over when and how much dredging will be needed

to ensure a safe navigation channel.

 Army also claims

that if channel obstructions occur movement of four

billion dollars worth of commodities would be impaired,

costing as much as $150 million annually for alternate

transportation.

The Agency believes that the hardship resulting from denial of

the variance remains unchanged from previous Board orders.

In its October 25,

 1984, opinion and order in PCB 84—86 the

Board addressed the environmental impact of past dredging

operations:

Dredging on the Illinois River has historically

 (1952-

1982)

 occurred along 36.5 miles of the 150 mile length.

The most relevant water quality monitoring data came

from dredging under variances in PCB 82-136 and 83-25.

While water quality violations do appear in the data,

it does not appear that dredging to date has caused or

significantly exacerbated water quality violations

(final Report in PCB 83—25, Enclosure 2).

 While

different dredging events will not necessarily follow

0136-02314

3

this pattern, the data so far shows minimal water

quality impact from dredging.

 Consequently, on the

factual record presented there,

In

 PCB 84—86) the

Board finds that the anticipated adverse environmental

 consequences are outweighed by the arbitrary and

unreasonable hardship that would be imposed if the

illinois~Rivë~beOãme

 nOn—nävigáble.

Because this variance is an extension of the prior variance the

environmental impact is the same.

The Agency recommends~that Army be granted the extension of

the variance as requested.

 The Army was previously granted

variances for its dredging operation because the burden on the

Army and commerce utilizing the river outweighed the

environmental impact avoided if the variance were denied.

 There

is nothing

 in the record to indicate that the burden or the

environmental impact have changed.

 Therefore, the Board grants

the variance subject to certain conditions.

Site-specific Relief

In PCB 87-38 the Board required the Army to file a petition

for site—specific relief by July

1,

 1988.

 On June 30,

 1988,

the

Army filed a rulemaking proposal

 (R88-15) concerning the dredging

activities in the Illinois River.

 The rulemaking proposal was

dismissed on January 19,

 1991, because the Army was not able to

proceed without monitoring data from the dredging activities.

The Army was granted leave to re—file a petition and the variance

granted in PCB 87-38 was not disturbed in anyway.

A petition for site-specific relief would allow the Board to

consider whether the Army’s maintenance dredging operations in

the river are entitled to permanent relief and to consider the

 Army’s contention that the current regulations are inappropriate

for dredging activities.

 A variance is a mechanism by which a

person is temporarily relieved from compliance with regulations

or orders of the Board while that person takes action to

ultimately achieve compliance.

 Variances are not to be utilized

in succession indefinitely as a means of attaining de facto

permanent relief.

 If the Army is entitled to permanent relief it

must seek that relief through site-specific rulemaking.

The Agency has requested that the variance be granted with

the condition that the Army file a petition for site-specific

relief by September 4, 1992.

 On September 3,

 1992, the Army

filed a petition for a site-specific rule1

 (R 92—7) related to

‘

 As noted in the Board’s order

 in R 92-17, dated September

17, 1992,

 this proceeding has been improperly characterized as

“site—specific” because the proposed regulation does not apply to

I 36-0235

4

the disposal of dredged material.

 Therefore, the Board will

alter the conditions of the variance to reflect the pending

rulemaking procedure.

 As a condition of the variance the Army

will be required to diligently proceed with the rulemaking

procedure currently before the Board.

Retroa~t~ive

 ~pplic.ãtior~

As a general rule,

 in the absence of unusual or

extraordinary circumstances, the Board renders variances as

effective on the date of the Board order in which they issue.

(LCN Closers.

 Inc. v. EPA (July 27, 1989),

 PCB 89-27,

 101 PCB

283, 286; Borden Chemical Co.

EPA

 (Dec.

5,

 1985), PCB 82—82,

67 PCB 3,6; City of Farmington v. EPA

 (Feb.

20,

 1985), PCB

84—166,

 63 PCB 97,

 98; Hansen—Sterling Drum Co.

 v. EPA

 (Jan.

24,

1985), PCB 83—240,

 62 PCB 387,

 389; Village of Sauget v. EPA

(Dec.

15,

 1983), PCB 83—146,

 55 PCB 255,

 258; Olin Corp.

v. EPA

 (Aug 30,

 1983), PCB 83—102,

 53 PCB 289,

 291.)

A variance is not retroactive as a matter of law, and

the Board does not grant variance retroactivity unless

retroactive relief

 is specially justified.

Deere

 & Co.

v.

 EPA,

 (Sept.

8,

 1988) PCB 88—22,

 92 PCB 91,

94

(citations omitted).

Absent a waiver of the statutory due date, Section 38(a)

of

the Environmental Protection Act requires the Board to render a

decision on a variance within 120 days of the filing of a

petition.

 See Ill. Rev. Stat.

 1991 ch.

 111 1/2, par.

 1038(a)

(amended from 90 days by PA. 84-1320, effective Sept.

4,

 1986).

For this reason, a petitioner that wishes a variance to

commence by a certain date must file its petition at least 120

days prior to the desired inception date.

 See EPA v. Citizens

Utilities Co.

 of Illinois

 (Jan.

12,

 1984), PCB 79—142,

 56 PCB 1,

4.

 The Army should have filed its petition by May 7,

 1992 in

order to file 120 days prior to the desired inception date of

September 4,

 1992.

 The Army filed its petition for variance on

July 20,

 1992.

There are no unusual or extraordinary circumstances in the

Army’s filing that would justify retroactively applying the

variance.

 The variance will commence on the date of this Board

order.

Expiration of Variance

The Army requests that the variance be extended until such

a specific facility or geographic site.

0136-0236

5

time as the Board has granted site-specific relief or,

 if denied,

a period of two years subsequent to such denial to permit the

Army to seek other means to maintain navigation on the Illinois

Waterway.

 Section 36(b)

 of the Act

 (Ill.

 Rev. Stat.

 1991,

ch.

11.

 1/2,

 par. 1036(b))

 limits the length of a variance to five

The~çre, the Board~c

 gg~antthevarianae~

iintil~.the.

completion

the

 site—specific rule or,

if

denied

for

two

years

subsequent to the denial.

 The Agency recommends granting the

variance for a three year period.

 Three years should provide

adequate time for the completion of the site—specific rulemaking.

Therefore, the Board will grant the variance for a period of

three years from the date of this order.

The Board notes that the conclusions that it reaches based

upon the record of the variance proceeding do not necessarily

reflect on the merits of any site-specific rulemaking.

The

burden of proof and the standards of review in a rulemaking

(a

quasi—legislative action)

and

 a variance proceeding

 (a quasi—

judicial action)

 are distinctly different.

 Titles VII and

IX of the Act;

 see also Willowbrook DeveloDment v. Pollution

Control Board (2nd Dist.

 1981),

 19 Ill.App.3d 1074, 416 N.E.2d

385.)

 The Board cannot lawfully prejudge the outcome of a

pending regulatory proposal in considering a petition for

variance.

 (City of CaseY v.

 IEPA (May 14,

 1981), PCB 81—16, 41

PCB 427.)

This variance does not impose any new conditions on the

Army’s dredging operation.

 The conditions of this variance are

identical to the conditions of the previous variance as modified

 by prior Board orders.

 The conditions of this variance are the

conditions suggested by the Agency in its recommendation with the

exception of condition 7 concerning the pending rulemaking

procedure.

This opinion constitutes the Board’s findings of facts and

conclusions of law in this matter.

ORDER

The Board hereby grants the Department of Army, Rock Island

District, Corps of Engineers

 (Army) variance from 35 Ill. Adm.

Code 304.105, Violation of Water Quality Standards,

 as it applies

to the following Sections: 302.203, Unnatural Sludge;

 302.206,

Dissolved Oxygen; 302.208, Chemical Constituents only to the

extent it concerns the standards for total lead, total

 zinc,

total copper and total mercury;

 302.212, Ammonia Nitrogen and

Unionized Ammonia.

1.

 This variance will begin on October

1,

 1992 and expire

on October

1,

 1995,

 or upon the date on which Army

achieves compliance with applicable water quality

standards or upon the issuance of a rule change by the

0136-0237

6

Board concerning effluent requirements for dredging

operations, whichever shall occur first.

2.

 This variance will apply only to violations of water

quality standards that may occur as a result of

discharge of dredged material coming from maintenance

d~dç1~of~séd1mer~tsnOt

 tirIIIiriOIi EPA ~i

certification # C-157-82,

 and only within the 25 sites

on the Illinois River Waterways between river miles

80.2 and 230.2, as specified in Attachment No.

 1 to the

amended petition for Variance filed on May 6,

 1983,

in

PCB 83-25 which is incorporated into this order.

The

four pages listing the sites are also attached to the

order.

 For purposes of this order dredging activities

of this type,

 shall be known as Condition No.

2

dredging events.

3.

 Prior to beginning any dredging event, Army shall

obtain sediment core samples at locations and depths

within the reach of the proposed dredge cut which are

representative of that cut, for the purpose of

determining whether such cut is a Condition No.

2

dredging event based upon an elutriate test performed

in accordance with Condition 10.

 Sampling and analysis

of the sediments shall include analysis for parameters

listed in Condition 9(d).

 This requirement will be

fulfilled if the site has previously been sampled as

pursuant to Condition 9(a) within the 12 months prior

to the dredging event.

4.

 Army shall conduct a Condition No.

 2 dredging event

only where necessary to ensure safe navigation, and the

length, width and depth of any such event shall be

reduced as much as feasible, consistent with providing

safe navigation.

5.

 For any Condition No.

 2 dredging event, Army shall

consider and evaluate the use of mechanical dredging

with bankline disposal, as opposed to hydraulic

dredging, for any such event under which less than

50,000 cubic yards will dredged.

6.

 For any Condition No.

 2 dredging event, Army shall use

all reasonable efforts, other than upland confined

disposal, to reduce the volume and character of

discharges which might cause water quality violations.

Open water disposal is prohibited.

7.

 Petitioner shall diligently pursue relief through its

pending rulemaking procedure (R92-7).

8.

 In advance of any necessary Condition No.

 2 dredging

0136-0238

event,

 Army shall notify the Agency of the day that the

dredging project is scheduled to begin.

9.

 Army shall conduct sampling and testing as follows:

a)

 On an annual basis,

 a survey of existing sediment

quality

àt~theII~Sités

 dèntifi~ttãchment

#1 to the amended petition for variance in PCB 83-

25 with a historical dredging frequency average of

once every ten years or less.

 No less than three

sediments core samples shall be taken from each of

the sites in the areas and to the depths most

likely to be dredged; the actual number of core

samples to be obtained shall be determined by the

 Army and the Agency based on the size and shape of

the area to be dredged;

 sediment samples shall be

analyzed for grain size, and an elutriate test,

performed in accordance with Condition 10, shall

be employed to analyze for parameters listed in

Condition 9(d).

b)

 The sampling and testing requirements of Condition

3 of this order.

c)

 During any dredging project, whether a Condition

No.

 2 dredging event or not, water quality impacts

and discharge character shall be monitored as

follows:

1)

 Army shall sample the following parameters at

all sampling points listed under Condition

9(c) (4):

 specific conductance; turbidity,

oil and grease; dissolved oxygen; total

suspended solids; total dissolved solids;

volatile suspended solids; total ammonia

nitrogen as N; pH; water temperature; lead

(total);

 zinc

 (total); copper (total); and

mercury (total).

2)

 Sampling at the sampling points listed in

Condition 9(c) (4)

 shall be at mid—depth and

bottom elevations between mid-channel and the

bank on which disposal occurs, or at point

representative of the discharge.

 Each sample

shall consist of two aliquots collected over

a six hour period.

3)

 Sampling at the sampling point listed in

Condition 9(c)(4)

 shall be done:

A)

 On two consecutive days per week if a

12-inch dredge is used;

0136-0239

B)

 Daily, but not to exceed five

consecutive days per week,

 if a 20—inch

dredge is used;

C)

 For use of any other size dredge,

splii~g~shaUbepe~o~x.

 ed_at ~a

frequency in proportion to the amount of

the discharge, but not less than two

consecutive days per week nor more than

five consecutive days per week.

4)

 Sampling shall be done at the following

points:

A)

 At a point upstream of the influence of

the dredging, but no more than one-half

mile;

B)

 At a point within tributaries entering

the dredge cut,

 if any, upstream of

backwater effects but as close to the

confluence as possible;

C)

 At six points downstream of the disposal

site:

1)

 Two sites located approximately

100’ downstream from the disposal

site; one 25’ off shore and one

approximately 150’ off shore but

not beyond the navigation channel.

2)

 Two sites located approximately

300’ downstream from the disposal

site; one 25’ off shore and one

approximately 200’ off shore but

not beyond the navigation channel.

3)

 Two sites located approximately

1,000’ downstream from the disposal

site; one 25’ off shore and one

approximately 250’ of

I

 shore but

not beyond the navigation channel.

D)

 Two samples at the disposal site; one

representative of the discharge and one

composite representative of the return

water.

d)

 Sediment samples taken under Condition

 9 shall be

analyzed for the following parameters with the

results of all chemical analyses being expressed

0136-02140

on a dry weight basis:

 grain size (based on a

U.S. #230 sieve), oil and grease,

 total volatile

solids,

 ammonia nitrogen, five-day biochemical

oxygen demand, copper, mercury,

 lead, and zinc.

10.

 All sampling and analytical methods tobe em~y~d

during the variance period shall follow procedures

established by Standard Methods for the Examination of

Water and Wastewater,

 16th Edition and Chemistry

Laboratory Manual for Bottom Sediments and Elutriate

Testing, March 1979.

 In addition to the above

requirements the elutriate test shall consist of a 30-

minute mixing period with a zero (0)-hour settling

period.

 Army in its discretion may also analyze

additional samples utilizing a longer settling period.

Both sampling and laboratory analyses shall provide for

replicate testing.

 Field analyses shall be performed

by trained personnel under~direct supervision;

laboratory analyses shall be performed by Agency

 certified laboratories.

ii.

 Petitioner shall submit to the Agency annually by

February

 1, the results of sampling under Conditions

No.

 3 and No.

 9, the results of any evaluations under

Condition No.

 5 and a status report on the rulemaking

procedure in Condition 7.

12.

 Petitioner shall submit yearly, data concerning the

amount of material that was dredged during the past

year on February 1, to the Agency.

13.

 Within forty-five

 (45) days of the date of the Board’s

order, Army shall submit th.e following certification of

acceptance to:

Illinois Environmental Protection Agency

Charles Feinen

Division of Legal Council

2200 Churchill Road

P.O. Box 19276

Springfield, IL

 62794—9276

The 45-day period will be held in abeyance during, any period

that this matter is being appealed.

 Failure to execute and

forward this certificate within 45 days shall render the variance

null and void.

 The form of the certificate shall be as follows:

CERTIFICATION

0136-02141

I,

 (We),

 having

read and fully understanding the order in PCB 92-107 dated

October

1,

 1992, hereby accept that order and agree to be bound

by all of its terms and conditions.

Fèt!tiOnér

Authorized Agent

Title

Date

IT IS SO ORDERED

Section 41 of the Environmental Protection Act,

 Ill. Rev.

Stat.

 1991 ch.

 111 1/2 par.

 1041, provides for appeal of final

orders of the Board within 35 days.

 The Rules of the Supreme

Court of Illinois establish filing requirements.

 (But see also

35 Ill. Mm. Code 101.246 “Motions for Reconsideration” and

castenada

Illinois

Human

Rights

Commission

(1989),

132

Ill.2d

304,

 547 N.E.2d 437.)

I, Dorothy M. Gunn,

 Clerk

Board,

 hereby certify that the

adopted~pnthe

/-~

 day of

of

___________

of the

Illinois

Pollution

Control

abov

 on and order was

_________________

 1992, by a vote

t~7

Illinois

 Control Board

0136-02142