ILLINOIS POLLUTION CONTROL BOARD

November 19, 1982

DEPARTMENT OF THE ARMY,

Petitioner,

v.

)

PCB 82—136

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION (by J.D. Dumelle):

My reasons for dissenting on this provisional variance are

because of the incompleteness of the pleadings on the merits and

the nature of the conditions as detailed below.

Variance is being granted for ammonia, unnatural turbidity,

and dissolved oxygen. The ammonia levels given (0.07 mg/l) are

probably un-ionized ammonia readings but this is not so stated.

The Board standard is 0.04 mg/i. What is not clear is whether

the act of dredging itself increases the ammonia content of the

returned river water. If it does not, then a valid argument can

be

made that variance is not needed to return river water to the

river.

The “unnatural turbidity” Board prohibition has been defined

by the Agency in terms of amount of sediment passing a given

sieve size. The Board here is thus granting variance really

not from the Act or a Board Rule but from an Agency criterion.

The Board, has no way, without a rulemaking proceeding or possibly

a permit appeal to determine whether or not this criterion is

“technically feasible and economically reasonable’t the statutory

requirememt for Board Rules. I strongly recommend that the Board

shortly, on its own motion, begin formal consideration of this

Agency turbidity criterion in order that the certainty of its

validity is established. Will barge tows that roil the water

need turbidity variances? Will pile driving cause a violation?

The third standard for which variance is granted is dissolved

oxygen. No information is given as to the cause of depression

of dissolved oxygen levels. Is it because of the ammonia levels

referred to above? Is it because of the sediments being dis-

lodged and exerting an oxygen demand? And will those lower levels

of dissolved oxygen cause fish kills? No information is available

to the Board in the pleadings on these important questions.

49-327

---

—2—

The conditions asked by the Agency and here granted by the

Board majority are troublesome. In Condition No. 2 a temperature

limit is given above which dredging may not be done. This was

done to reduce the toxic effects of the ammonia. But if the

dredging does not increase ammonia levels above ambient river

water content then the temperature limit becomes useless. The

ammonia is as toxic in the river as it ever was and returning

river water to the river doesn’t change that fact.

Conditon No. 5 asks for historical dredging data since

1927. Since these data are to be furnished by February 28, 1983

they obviously are not a portion of the instant 30—day variance.

Could the Agency not have requested these data under the Freedom

of Information Act instead of in a short term provisional variance?

Conditions Nos. 6 and 7 require a confined disposal area for

“further dredging”. Again, this requirement has no relationship

to the instant variance and thus in fact is beyond the Board’s

legal powers to so require.

Lastly, Condition No. 8 requires that a named dredge under

Federal control be kept in the Peoria area through February 1983

“barring emergency considerations”. No justification is given for

this sweeping order of deployment of a piece of Federal equipment.

What relation does this condition have at all to the instant

variance? Where is the Board’s legal authority to do this?

The Agency has here proposed a convoluted and troublesome

provisional variance to the Board. The Board, as a minimum,

should have struck down those conditions listed above.

Jacob D. Dumelle, Chairman

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify that the above Dissenting Opinion

was filed on the

/f~

day of

/)~+?~-&-~.~ —

,

1982.

Christan L. Mof ~ Clerk

Pollution Contror~oard

49-328