ILLINOIS POLLUTION CONTROL BOARD
February 3,
1994
IN THE MATTER OF:
)
)
PETITION OF THE U.S.
ARMY
ENGINEER
)
R92-17
DISTRICT, ROCK ISLAND, FOR A DREDGED
(Rulemaking)
MATERIAL
PLACEMENT
REGULATION
)
APPLICABLE TO THE ILLINOIS RIVER!
)
WATERWAY BETWEEN LA GRANGE LOCK
AND
)
DAM
(MILE 80.2)
AND
LOCKPORT LOCK
)
(MILE 291):
35
ILL. ADM. CODE 303.400
)
Adopted Rule.
Final Order.
OPINION
AND
ORDER OF THE BOARD
(by R.C.
Flemal):
This matter comes before the Board on filing of a regulatory
petition by the U.S. Army Engineer District, Rock Island
(Department of the Army).
Petitioner requests adoption of a
regulation that allows for disposal of dredged material along the
bankline of the Illinois River\Waterway1 at locations between
the La Grange Lock and Dam located at river mile 80.2 to the
Lockport Lock located at river mile 291.0.
The Board’s responsibility in this matter arises from the
Illinois Environmental Protection Act
(Act)
(415 ILCS 5/1 et
seq.).
The Board is charged under the Act to “determine, define
and implement the environmental control standards applicable in
the State of Illinois”
(Act at Section 5(b)).
More generally,
the Board’s rulemaking charge is based on the system of checks
and balances integral to Illinois environmental governance: the
Board bears responsibility for the rulemaking and principal
adjudicatory functions, whereas the Illinois Environmental
Protection Agency
(Agency)
is responsible for the principal
administrative duties.
The latter’s duties include administering
the regulations that result from today’s action.
By today’s action the Board adopts the Department of the
Army’s proposal.
The regulations will now be forwarded to the
Office of the Secretary of State and be effective upon receipt by
that office.
1
The “Illinois Waterway”
is defined statutorily in the
Illinois Waterway Act at 615 ILCS 10/1 as a waterway from
Lockport to a point on the Illinois River near Utica.
The focus
of today’s proposal includes this waterway and the Illinois
River.
—2—
PROCEDURAL HISTORY
The Department of the Army’s petition was filed on September
3, 1992.
On September 17,
1992 the Board issued an order
accepting the petition.
The Board at the same time noted that
because the proposal addresses potential actions in several
counties over a significant portion of the State,
two public
hearings would be needed pursuant to Section 28 of the Act.
On January 21,
1993 the Metropolitan Water Reclamation
District of Greater Chicago filed a public comment in which it
recommended adoption of the proposed regulations.
On June 4,
1993 the Agency filed a response to the petition2.
The Agency
recommended adoption of the proposal with some generally non-
substantive modifications.
Public hearings were held before Hearing Officer Michelle C.
Dresdow on June 22,
1993 in Peoria,
Illinois, and on June 23,
1993 in Morris, Illinois3.
Members of the public attended the
hearings and participated in questioning of the proponents at the
Morris hearing.
On June 30,
1993 the hearing officer issued an order setting
the post—hearing comment period.
In the same order the hearing
officer set out for comment possible language for the proposed
rule.
In mid-July 1993 both the Department of the Army and the
Agency filed motions to extend the close of the post-hearing
comment period.
Both observed that key personnel were then
engaged full-time in flood emergency work.
By order of July 26,
1993 the hearing officer set the post-hearing comment period to
close on August 30,
1993.
On July 21,
1993 the Department of the Army filed
corrections to the transcripts of the two hearings.
The hearing
officer by order of August
2,
1993 directed that the corrections
be entered into the record.
2
The Agency’s response was submitted as one of the
documents within the Agency’s pre—hearing submission package.
The response was officially entered into the record at hearing as
Exhibit L.
~ Transcripts of the two hearings are cited to herein as
“Tn.” and “Tr2.”, respectively.
Presubmitted written testimony
of witnesses for the Department of the Army was entered into the
record as if read and assigned exhibit numbers as follows: Billy
H. Johnson, Exhibit F; Richard Baker, Exhibit G; Clinton A.
Beckert, Exhibit H; David W.
Moore,
Exhibit I; and James A.
Stiman, Exhibit J.
—3—
On August 30,
1993 the Department of the
Army
filed its
post—hearing public comment
(PC #2).
On September 13,
1993 the
Agency and the Department of the Army filed a joint public
comment (PC #3) including a stipulation regarding language for
the proposal rule; the comment was accompanied by a motion to
file instanter,
which is hereby granted.
On September 20,
1993
the Agency and the Department of the Army filed a correction to
the stipulation
(PC #4).
By opinion and order of September 23,
1993 the Board adopted
the Department of the Army’s proposal for first notice.
First
notice publication occurred at 17 Ill Reg.
16734
(Oct.
8,
1993).
The Department of the Army’s proposal was adopted for second
notice by opinion and order of December 2,
1993.
The second
notice proposal was unmodified from the first notice proposal
except in response to public comments filed during the first
notice public comment period.
By PC #5 the Illinois Department of Commerce and Community
Affairs filed notice that the proposal did not significantly
impact small business.
By PC #6 the Administrative Code Division
of the Office of the Secretary of State gave notice of two non-
substantive changes necessary to conform the text of the rule to
administrative code format; these changes were incorporated into
the second notice proposal.
On November 23,
1993 the Agency filed a public comment (PC
#7) noting that the parameters listed in the proposed language at
Section 303.400(b) did not conform to the parameters for which
exception was intended to be granted as discussed at pages 5 and
6 of the first notice opinion.
(See also PC #4 and #7 where the
parties agree to the proposed parameters.)
In particular, the
former did not include mercury and total copper.
The Agency
again recommended that mercury and total copper be specified at
Section 303.400(b).
In its second notice opinion the Board noted
its agreement with the Agency that justification for the
inclusion of mercury and total copper in Section 303.400(b) had
been made; the amendments were accordingly made.
On January
11,
1994 the Joint Committee on Administrative
Rules voted no objection to adoption of the proposed rules.
BACKGROUND
The Illinois River/Waterway is subject to sedimentation as
the consequence of normal fluvial processes.
This sedimentation
does on occasion and at local sites threaten navigation by
causing the channel to become narrow or shallow.
The Department of the Army is charged by Congress with
maintaining a nine—foot navigation channel on the Illinois
—4—
River/Waterway.
Among other matters, maintenance involves
dredging of accumulated sediment as necessary to restore the
channel to proper navigational dimensions.
The Department of the Army explains its dredging program as
follows:
While occasional emergency dredging operations may
result from grounding of
a barge and consequential
channel closures, usually the need to dredge a
particular area is identified by survey crews which
perform soundings throughout the navigation season.
Based upon results of the soundings, dredging sites are
prioritized and scheduled typically days to weeks in
advance.
Because tens of thousands of cubic yards of
river bottom material must be moved at most dredge
sites,
the only technique which is effective and
economical is hydraulic dredging.
Hydraulic dredges
consist of a floating plant having a cutter head which
is lowered to the bottom of the river and digs into the
sediment.
A large pump producing a suction on one side
and pressure on the other draws
a mixture of sediment
and water to the surface and transports it via a
pipeline to the disposal site,
up to a mile away.
The
slurry which is formed during the dredging process
consists of 10—20
solid material and 80
to 90
entrained river water.
Thus,
for every cubic yard of
bottom material moved,
5—10 cubic yards of slurry is
created.
(Petition,
p.
3-4.)
Each dredging operation is assessed prior to its initiation.
The assessment process includes sampling and surveying of the
proposed dredge materials and proposed disposal site by the
Department of the Army.
Additionally, an environmental assessment of each
dredging/disposal operation is made by an On Site Inspection Team
(OSIT)
consisting of personnel from both state and federal
agencies4.
The OSIT reviews each proposed site in the field and
makes recommendations,
including recommendations for placement of
the dredged material so as to minimize any impact on backwaters,
wetlands, and other sensitive habitats.
(Exh. A at 3-1;
Exh.
G.
at 15.)
The Department of the Army must notify the OSIT of any
departures that it makes from the OSIT recommendation.
The OSIT
~ The state agencies are the Illinois Environmental
Protection Agency, Illinois Natural History Survey, Illinois
Department of Conservation, and Illinois Department of
Transportation,
Division of Waterways.
The federal agencies,
in
addition to the Department of the Army, are the U.S. Fish and
Wildlife Service and the US. Environmental Protection Agency.
(Petition at 7; Exh. A.
at 3—1; Exh. G at 15.)
—5—
also holds a post—disposal inspection of each year’s dredged
material placement sites.
(Exh. A at 3—2.)
The Department of the Army has been conducting bankline
disposal on the Illinois riven system pursuant to a series of
variances granted by the Board, the most recent of which was
granted in PCB 92-107 on October 1,
1992~. This current variance
will, by its terms,
terminate on the effective date of the
instant rules.
As conditions to the grant of the several variances the
Department of the Army has been required to gather and analyze
data regarding environmental impact of its bankline disposal
practices.
These data form part of the support for today’s
action.
The dredging operations of the Department of the Army are
also governed by a variety of federal and state regulations and
policies.
(See Exh. A at 2-3 to 2-9 for a comprehensive list.)
Among the more important of these is the National Environmental
Policy Act of 1969, the Corps of Engineers Dredging Regulation
(see Exh. D,
33 CRF Parts 335—338.), and the federal Clean Water
Act.
NATURE OF TODAY’S
RULES
Today’s rules are directed solely to the disposal of
sediment generated by the Department of the Army during
maintenance dredging on the Illinois Waterway/River between river
miles 80.2 and 291.
Moreover, today’s rules are directed solely
to disposal of that sediment via bankline deposition; no other
form of disposal, including upland deposition or open—water
disposal,
is included.
Under the terms of today’s rules bankline disposal is
permissible only if the Department of the Army holds a 401 water
quality certification from the State and the disposed sediment is
dominated by sand,
or there is a demonstration by use of the
SSTFATE
(suspended sediment transport fate) model that no water
quality standards will be violated outside of an area of allowed
mixing.
Specifically, bankline disposal is permissible only if:
~ Department of the Army v. Illinois Environmental
Protection Aaencv
(Oct.
1,
1992), PCB 92—107,
136 PCB 233.
Prior
variances were granted in Army v. IEPA
(May 21,
1992),
PCB 91-
113,
133 PCB 475; Army v. IEPA (Sept.
17,
1987), PCB 87—38,
81
PCB 257; ArmY
V.
IEPA (Oct.
25,
1984), PCB 84—86,
60 PCB 365; and
ArmY
V.
IEPA (July 26,
1983),
PCB 83—25,
53 PCB 81.
—6—
1)
less than 10
of representative samples from a
proposed dredge cut are composed of fine—grained
material6, or
2)
the SSTFATE model indicates that applicable water
quality standards will be met at the perimeter of
a temporary area of allowed dilution having an
area of no more than 48,000 feet.
As a further term of today’s rules, when and where bankline
disposal is permissible, the Department of the Army is not be
subject to 35 Ill.
Adm. Code 304.105 as a result of bankline
disposal.
Section 304.105
is a provision of the Board’s effluent
regulations7 that in pertinent part establishes that “no effluent
shall, alone or in combination with other sources,
cause a
violation of any applicable water quality standard”.
The
“applicable water quality standards” are identified as those that
occur at 35 Ill. Adm. Code 302.203, Offensive Conditions; 35 Ill.
Adm. Code 302.206, Dissolved Oxygen;
35 Ill.
Adin.
Code 302.208,
Numeric Standards for Chemical Constituents, only to the extent
that it concerns the standards for total lead, total
zinc, total
copper, and total mercury; and 35 Ill. Adm. Code 302.212, Ammonia
Nitrogen and Un-ionized Ammonia.
DISCUSSION
Water Quality Considerations.
Bankline disposal consists of
placement of dredge slurry along the riverbank, with part of the
material being placed on the bank above the waterline and the
remainder of the material placed in the adjacent water.
(Exh.
G
at 10.)
During and following disposal some of the water
entrained in the slurry re—enters and becomes part of the river
flow.
The entrained water carries with it some suspended and
dissolved solids that are potential pollutants of the river,
and
thus have water quality consequences.
There are no current Illinois water quality regulations that
expressly apply to bankline disposal of dredged sediment.
However, bankline disposal,
like activities in general that may
impact water quality,
is subject to the prohibition against
causing water quality violations found at Section 304.105 of the
Act.
Thus,
a person conducting bankline disposal is potentially
6
A
sample
is fine-grained
if more than 20
of the sample
passes a number 230 sieve.
A number 230 sieve will retain material
greater than
62 microns
in nominal dimension and pass
material
smaller than 62 microns.
62 microns is the division between silt—
and clay-sized particles.
‘
35 Ill.
Adm. Code Part 304.
—7—
liable for water quality violations associated with return of
the
entrained water.
Both the Department of the Army and the Agency conclude that
impact on water quality of bankline disposal is minimal.
This
conclusion
is based on the limited area over which bankline
disposal has impact, the limited numbers of parameters which are
potentially involved, and the ability to successfully predict,
and hence minimize, the circumstances where the impact would be
greatest.
The Agency also observes that bankline disposal is possessed
of mitigating factors,
including
(a) no new pollutants are
introduced into the river,
(b) the discharges are of short
duration and thus there are no chronic toxicity effects to
consider, and
(c) the present dredging procedures have been
utilized for many years without obvious adverse impacts (i.e.,
fish kills).
(Exh. L at ¶8.)
Sediments that are subject to dredging are dominantly within
the sand and silt size—range.
Pursuant to conditions attached to
the previous grants of variance, the Department of the Army has
since 1983 conducted a systematic determination of sediment
particle sizes from locations along the river where dredging has
been required.
The principal measurement has been the percentage
of the sample that passes a number 230 sieve8, and thereby are
clay-sized particles.
In the most recently reported tabulation
of 1,118 total samples,
75 percent contained less than 20 percent
clay,
20 percent contained between 20 and 80 percent clay, and 5
percent contained 80 percent or more clay.
(Tn. at 36.)
Most of the sand—sized particles remain at the point of
bankline deposition or travel only relatively short distances.
Thus, these contribute to suspended sediment problems over only a
limited area.
450 of the samples subjected to particle—size analysis have
also had elutniate testing performed on them by the Department of
the Army.
Constituents tested have included arsenic, barium,
cadmium, chromium, copper,
lead, mercury, nickel,
selenium, zinc,
ammonia, oil and grease, biochemical oxygen demand, and
polychloninated biphenyls.
(Exh.
H at 4.)
Only ammonia and zinc
elutniate concentrations have been above stream water quality
standards.
This was the case in approximately 50
of the ammonia
elutniate samples and 3
of the zinc elutniate samples.
(~.
at
7.)
The ability to predict water quality consequences is
dependent upon use of the SSTFATE model.
This model has been
developed by the U.S. Army Corps of Engineers Waterways
8
See footnote 6.
—8—
Experiment Station at Vicksburg, Mississippi, and specially
modified to address bankline disposal on the Illinois River.
(Exh.
F at 7.)
The SSTFATE model has also been calibrated and verified for
conditions on the Illinois River.
Calibration was based on a
preliminary dye study
(Exh.
C-i), which allowed determination
that the majority of sediment was transported as a density flow
near the bottom of the river well away from shore (Tn. at 23),
and data gathered during dredging at Quiver Island (river mile
121).
The model has subsequently been verified with data
gathered during dredging at three separate river sites9.
Calibration is based on the assumption that 100
of the
sediment deposited at the bankline re-enters the water.
(Tn. at
28—30.)
This is a conservative assumption in that it tends to
cause overestimation of the actual water quality impacts.
The
choice of Quiver Island as a calibration site is also a
conservative selection in that the Quiver Island sediments are
finer-grained than normal
(Pr?.
at 23,
34) and of poorer chemical
quality than normal (Tn. at 38—39).
The SSTFATE model predicts not only suspended sediment
concentration, but also chemical concentrations.
Of interest in
the instant matter are six chemical parameters: dissolved oxygen,
ammonia, and four metals.
The parameters have been selected as
being those for which the water quality standards are most likely
to be locally exceeded due to bankline deposition,
as based on
the experience of both the Agency and the Department of the Army
(Pr?.
at 43),
including experience gained from elutriate testing.
A dissolved oxygen problem is most likely to be caused by high
oxygen demands associated with pore—waters and organic fractions
of the dredged sediments.
An ammonia problem is also most likely
to be related to pore—water and organic fraction conditions.
The
four metals are metals whose concentration typically correlates
strongly with suspended sediment concentration, and for which
there
is an historical record of elevated concentrations in
dredge slurries.
(Tn?.
at 43—46.)
For each of the six chemical parameters there is typically a
strong correlation between fineness of particle size and chemical
quality of the associated waters’°.
(Exh.
H. at 8.)
Moreover,
~ At Deer Park Light at river mile 228
(Exhibit C), and at
Quiver Island at river mile 120.0 and Pekin Bend at river mile
150.5
(Tr2. at 13—14; Supplement to Data Exhibit C—2).
10
Since metals are commonly measured as “totals”
(e.g.,
total lead),
significant portions of the reported concentrations
may be in the form of very—fine particulate matter rather than
being in solution.
This fact in part underlies the grain-
size/concentration correlation.
—9—
since fine—sized materials experience the most broad dispersion,
the prospect of both high and broadly distributed water quality
exceedences increases in proportion to the percent of fine—
grained material in the dredging slurry.
That ammonia is likely to be the most troublesome of the
chemical constituents is confirmed by general experience with
Illinois River sediments and by the Department of the Army’s
elutriate analyses; the Department of the Army has also conducted
bioassays on elutniates and sediments
(Exh. C—3 and I) that
affirm ammonia toxicity in some of the undiluted samples.
However,
field and modeling results also show that ammonia
concentrations fall rapidly upon mixing with riven waters
(see,
e.g.,
Exh. C-2 and Supplemental data to C-2).
Thus,
ammonia
toxicity,
if it occurs at all,
is likely to be confined to a
small zone of mixing; by the nature of the dredging disposal
operation itself, the toxicity would also not be expected to be
persistent.
The absence of known examples of aquatic kill—offs
during the long history of bankline disposal on the Illinois
River gives weight to the conclusion that bankline disposal does
not cause significant toxic aquatic effects in spite of the
ammonia analyses record.
Nevertheless, the Department of the Army and the Agency
agree,
and the Board concurs, that bankline disposal of fine—
grained material should take place only if there is a prior
SSTFATE model demonstration that the water quality standards will
not be exceeded beyond the bounds of the zone of allowed mixing.
In balance, the Board believes that limiting bankline
disposal to coarser sediments, unless there is an affirmative
demonstration of minimal water quality impact via the SSTFATE
model,
further serves the public interest by providing reasonable
assurance that only relatively clean sediments are bankline
disposed.
The Board has also addressed the issue of environmental
impact of bankline disposal in each of the previous variance
proceedings”
.
There the Board has consistently found that the
anticipated adverse environmental consequences are outweighed by
the arbitrary and unreasonable hardship that would be imposed
upon the Department of the Army and upon commerce if dredging and
hence navigation were significantly impeded.
Although the
standard of review is different in the instant regulatory
proceeding than it is
in a variance proceeding, the Board again
in this proceeding concludes that the balance between minimal
environmental impact and large potential economic losses favors
granting of the requested relief.
~ See footnote
5.
—10—
Economic Considerations.
Annual commodity shipments on the
Illinois Waterway exceed 41 million tons, with a total value of
approximately $4.5 billion.
(Petition at 10.)
Major commodities
shipped are grain, coal, petroleum, chemicals,
iron, and steel.
(u.)
Failure of navigation on the Illinois Waterway would
accordingly have large economic consequences.
Bankline disposal is not the only method by which dredged
sediment may be disposed, but it is the only economical method in
many circumstances.
Sites for confined disposal, whether upland
or bottomland,
are generally not available, and where available
may be prohibitively expensive.
It is estimated that
construction of ten confined disposal sites would cost more than
$18 million.
(Petition at ii.)
Moreover,
it is difficult to
anticipate where dredging might be needed, and accordingly where
confined disposal sites would need to be placed.
As the
Department of the Army observes:
The historical dredging records do not lend themselves
to predicting dredging sites with sufficient accuracy
to justify the expenditure of many millions of dollars
for confined disposal facilities that might get little
or no use.
(Tn. at 14.)
The Agency’s analysis also causes it to conclude that
“bankline disposal of dredged material
is the only economically
reasonable method of maintaining the channel”
(Exh. L at ¶1).
Because today’s adopted rules give authorization to bankline
dispose only “clean” sediments, the Department of the
Army
will
have to continue to make other disposal arrangements for
sediments that do not pass the cleanliness tests.
Historically
the Department of the Army has encountered insufficiently clean
sediments in the Cal-Sag Canal on the Illinois Waterway, and
accordingly has prepared an upland confined-disposal facility to
accommodate them.
(Exh.
G. at 12.)
Should other low-quality
sediments be encountered at places within the Illinois River
system, the sediments will have to be similarly handled.
Miscellaneous Benefits.
Bankline disposal has some economic
and environmental benefits aside from those associated with the
dredging itself.
Among these is beach nourishment.
The
Department of the Army observes:
At certain locations some of the disposal materials are
very beneficial for public recreation, as the (Illinois
Waterway
system creates little or no natural beaches
suitable for recreation.
Also,
some of the material
is
used to reduce shoreline erosion and to protect or
improve flood control levees.
There is some quantity
of material placed on the bankline that has little or
no beneficial use.
(.Exh.
G at 10.)
—11—
401 Certification.
The Department of the
Army
is required
pursuant to Section 401 of the federal Clean Water Act
(33 U.S.C.
Sl34i
(1988)) to obtain periodic certification from the Agency
that its dredging operations are being conducted in accordance
with state water quality laws.
The Department of the
Army
provides the Agency with annual reports of its dredging program,
including all required water quality analyses.
It is upon the
basis of these reports that the Agency bases its certification.
(Tn. at 50—55.)
Both the Department of the
Army
and the Agency have
requested that the requirement for 401 certification be written
into the instant regulation.
This action makes the certification
that is required under federal law also an requirement under
Illinois law,
and causes bankline disposal to be prohibited in
the absence of the certification.
ORDER
The Board directs the Clerk of the Board to submit the text
of the following amendments to the Secretary of State for final
notice pursuant to Section 6 of the Illinois Administrative
Procedure Act.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE F: WATER POLLUTION
CHAPTER I: POLLUTION CONTROL BOARD
PART 303
WATER USE DESIGNATIONS
AND
SITE SPECIFIC WATER QUALITY STANDARDS
SUBPART
C: SPECIFIC USE DESIGNATIONS
AND
SITE SPECIFIC WATER QUALITY STANDARDS
Section 303.400
Bankline Disposal along the Illinois
Waterway/River
a)
The U.S. Department of the Army,
Corps of Engineers,
may bankline dispose of sediment generated during
maintenance dredging operations on the Illinois
Waterway/River between river miles 80.2 and 291
if:
1)
Less than 10
of representative samples from
a proposed dredge cut are composed of fine-
grained material, where a material is fine-
grained if more than 20
of the sample passes
a #230 sieve; or
2)
The SSTFATE model indicates that applicable
water quality standards will be met at the
perimeter of a temporary area of allowed
dilution having a surface area no larger than
—12—
48,000 square feet, and not exceeding either
1,000 feet in length or 150 feet in width;
and
3)
The U.S. Department of the Army, Corps of
Engineers, holds a Water Quality Certification for
its dredging operations from the Illinois
Environmental Protection Agency pursuant to
Section 401 of the federal Clean Water Act,
33
U.S.C. S134i
(1988).
b)
When the provisions of subsection
(a) are met, Section
35 Ill. Adm. Code 304.105
(prohibition against causing
a violation of any applicable water quality standard),
shall not apply to bankline disposal by the U.S.
Department of the Army, Corps of Engineers, but only as
35 Ill.
Adin. Code 304.105 pertains to the offensive
conditions standard of 35 Ill.
Adm. Code 302.203, the
dissolved oxygen standard of 35 Ill. Adm. Code 302.206,
the total lead, total zinc, mercury, and total copper
standards of 35 Ill. Adm. Code 302.208, and the ammonia
nitrogen and un—ionized ammonia nitrogen standards of
35 Ill. Adm. Code 302.212.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the a~veopinion and order was
adopted on the
3~
day of
~
,
1994 by a vote
of
1-’ ~
.
:
~
Dorothy M.
Gurin, Clerk
Illinois Pol~utionControl Board
