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
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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:
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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