ILLINOIS POLLUTION CONTROL BOARD
    November 19, 1982
    DEPARTMENT OF THE ARMY,
    )
    Petitioner,
    v.
    )
    PCB 82—136
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD (by J. Anderson):
    This provisional variance request comes before the Board
    upon the November 18, 1982 Recommendation of the Illinois
    Environmental Protection Agency (Agency). The Agency recommends
    that a 30—day provisional variance he granted to the Department
    of the Army, Rock Island District, Corps of Engineers (Army
    Corps) in connection with its proposal for maintenance dredging
    of the Illinois River between miles 147 and 148, located near
    the mouth of the Mackinaw River. Approximately 170,000 cubic
    yards of “highly polluted” dredgings are proposed to be deposited
    on the banks of the Illinois River, As some of this sediment
    will be carried back into the river by, for example, storm
    run—off, the Agency recommends a 30—day provisional variance
    from the water quality standards of 35 Ill. Adm. Code 302..212
    (ammonia nitrogen), 302.203 (unnatural turbidity), and 302.206
    (dissolved oxygen).
    The Board notes that this Recommendation is replete with
    Agency “misgivings” concerning the Army Corps’ “inadequate”
    environmental impact assessment, its delay in seeking variance
    relief (believed by the Agency to have been a forseeable need),
    and its choice to petition for a provisional variance rather
    than a Board variance with its provisions for “meaningful
    analysis, comment and opportunity for hearing”. In the latter
    context, the Agency stated that
    “it believes that the Petitioner’s (sic) has used
    the provisional variance in this matter as a way
    to force the Agency to act quickly and favorably
    or be accused of shutting down commerce on the
    Illinois River,”
    The Board concurs that while this use of the provisional
    variance mechanism falls within the letter of the law as
    outlined in Sections 35(a), 36(c), and 37(b) of the Act it
    49~-323

    2
    does considerable violence to its spirit: while the variance
    authorizes an act of less than 45 days in duration, it may
    result in problems of much greater duration. However, given
    a) the Agency~sfinding that denial of variance would impose
    an arbitrary or unreasonable hardship, and b) the extremely
    limited nature of the Board?s Section 35(a) authority to
    review provisional variance requests, the Board reluctantly
    accepts the Agency~sRecommendation. Variance is granted,
    subject to the conditions outlined in the attached Order.
    ORD ER
    Petitioner, the Department of the Army, Rock Island
    District, Corps of Engineers, is hereby granted a provisional
    variance from 35 Ill, Adm. Code 302.212 (ammonia nitrogen),
    302.203 (natural turbidity) and 302.206 (dissolved oxygen)
    for a period of 30 days, subject to the following conditions:
    1. Petitioner shall dredge no more than 170,000 cubic yards
    on the Illinois River between miles 147 and 148.
    2. Petitioner shall not commence dredging until the ambient
    water temperature in the Illinois River between miles
    147 and 148 reaches a temperature of less than 8 degrees
    Celsius. The 30 day period of the variance shall commence
    at such time,
    3. Petitioner shall notify Tom McSwiggin, Manager, Permit
    Section, Division of Water Pollution Control (217/
    782—0610), the day that dredging begins.
    4. Petitioner shall monitor and report the water quality
    impacts of the dredging as follows:
    a. Petitioner shall sample the following parameters
    at all sampling points listed under Condition 4(d):
    total suspended solids; volatile suspended solids;
    total ammonia nitrogen as N; pH; temperature; lead
    (total and dissolved); zinc (total and dissolved);
    dissolved oxygen.
    b.
    Sampling at the sampling points listed in Condition
    4(d) shall be at surface and mid—depth elevations
    between mid~channel and the bank on which disposal
    occurs,
    c. Sampling at the sampling points listed in Condition
    4(d) shall be done daily during the period of the
    dredging. Petitioner shall identify the river
    velocity for each day of the dredging.
    d. Sampling shall be done at the following points:
    49~324

    3
    1. If the discharge plume is visually identifiable,
    at a point upstream of the influence of the
    dredging operation and at 10 points spaced
    equidistantly within the discharge plume.
    Petitioner shall identify the location of each
    sampling point (by river mile and location
    within the channel) and shall provide a sketch
    of the plume; or
    2. If the discharge plume is not visually
    identifiable, at a point upstream of the
    influence of the dredging operation, at a point
    approximately 1,000 feet downstream of the point
    of discharge, and at each river mile beginning
    with mile 147 and ending with mile 138.
    Petitioner shall identify the location of each
    sampling point (by river mile and location
    within the channel).
    e. Samples shall be analyzed in accordance with Standard
    Methods. The results of this analysis shall be
    submitted to the Agency by January 15, 1983.
    5. Petitioner shall compile and analyze all historical data
    of dredging on the Illinois River between River Miles 80.2
    and 230.2 since 1927. By February 28, 1983, Petitioner
    shall submit a report to the Agency and the Illinois
    Department of Transportation identifying each site dredged,
    the frequency that each site was dredged, the method of
    dredging used in each instance, the quantity of material
    dredged each time, the method of disposal for each dredging,
    and any and all analyses of the material dredged for each
    site and each dredging.
    6. Using the information developed under Condition 5,
    Petitioner shall identify the sites along the Illinois
    River which have been most frequently dredged. Petitioner
    shall sample the sediments at those sites designated by
    the Agency to determine whether the sediments meet the
    material testing requirements set forth in Agency rules.
    Petitioner shall submit the results of sampling to the
    Agency by May 1, 1983. If sediments fail to pass the
    testing requirements, Petitioner shall immediately begin
    planning for the location, development and construction of
    a confined disposal facility, and investigate alternatives,
    innovative or otherwise, for controlling pollutants in a
    manner which minimizes the need for confined disposal
    facilities without open water or bank disposal of polluted
    materials. Petitioner shall fully cooperate with the
    Department of Transporation in its planning effort.
    7. If any further dredging is to be done between miles 147
    and 148, the Petitioner, in conjunction with a local
    sponsor, shall locate, develop and construct a confined
    49-325

    4
    disposal area. If such a disposal area cannot be provided
    despite the exercise of all diligent efforts, Petitioner
    shall seek a variance before the Illinois Pollution Control
    Board, pursuant to Section 35(a) of the Act. Any such
    variance request shall be commenced no later than 90 days
    before any additional dredging is to begin.
    8. Barring emergency considerations, the dredge Thompson
    shall remain in the Peoria area of the Illinois River
    from December 1982 through February 1983.
    9. Within ten days of the date of this Order, Petitioner shall
    execute and forward to Delbert flaschemeyer, Deputy Director,
    Illinois Environmental Protection Agency, Enforcement
    Programs, 2200 Churchill Road, Springfield, Illinois 62706,
    a Certificate of Acceptance and Agreement to be bound to
    all terms and conditions of this provisional variance. The
    form of the certificate shall be as follows:
    CERTIFICATE
    I, (We),
    ________________-~___________
    ,
    having read
    the Order of the Illinois Pollution Control Board in PCB 82—136
    (provisional variance) dated
    _____________
    _____,
    understand
    and accept the said Order realizing that such acceptance renders
    all terms and conditions thereto binding and enforceable.
    Petitioner
    By: Authorized Agent
    Title
    Date
    IT IS SO ORDERED.
    Board members J. Dumelle dissented and I. Goodman concurred.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby c~rtifythat the above Opinion and Order
    was adopted on 1the
    /q_u’i
    day of
    ____________________,
    1982
    by a vote of
    ~f-/ —.
    Christan
    ii~cfl
    L. Moffe~t
    ~
    iClerk
    Illinois Pollution ontrol Board
    49-326

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