ILLINOIS POLLUTION CONTROL BOARD
May 21,
1992
DEPARTMENT OF THE ARMY,
)
)
Petttioner,
PCB 91—113
v.
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade)
This matter comes before the Board on a petition for
variance
(Pet.)
from Board order PCB 87-38 filed by the
Department of the Army (Army) on July 8,
1991.
The petition
requests modifications to the testing procedures included as part
of the conditions of the variance granted in PCB 87-38.
The
petition requests that the records, opinions and orders issued by
the Board in PCB 87-38,84-86,
and 83—25 be incorporated.
The
Board in its July 11,
1991, order denied the Army’s request to
incorporate the entire record of the three prior proceedings but
did incorporate by reference the prior Board opinions and orders.
The order also directed the Army to file copies of the documents
referenced in the petition.
In response to the Board’s order,
the Army filed a copy of the analytical data (References #1
through #18).
Reference #19 was not included because it was not
completed at the time the other documents were filed.
The Board
in its September 26,
1991, order construed the filing of the
documents as an amended petition which started the tiiueclock for
actions required by Section 35-38 of the Environmental Protection
Act
(Act).
The Board further directed the Army to file Reference
#19 upon its completion,
and for the Agency to file an
appropriate motion if it believed that Reference #19 was
necessary for the Agency to prepare its recommendation.
The Army filed an open waiver of all statutory deadlines on
December 13,
1991.
Reference #19 was filed on February 24,
1992.
The Agency filed its recommendation
(Rec.)
on April
17,
1992.
The Army,
in the petition, waived its right to a hearing and no
person filed an objection to the petition for modification to the
variance conditions, therefore no hearing was held in this
matter.
No final briefs were filed.
BACKGROUND
The Army petitions the Board to amend its previous order in
PCB 87-38, dated September
17,
1987,
as amended by Board order
dated November
8,
1990.
(Pet. at
1.)
In PCB 87-38, the Army was
granted a five year variance from 35
Ill. Adm. Code 304.105,
I 33—475
2
Violation of Water Quality Standards,
as it applies to the
following Sections:
302.203, Unnatural Sludge;
392.206 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.
(Pet. at
1.)
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 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.
The petition requests that modifications be made to the
sampling locations being used during dredging and the water
quality standards being analyzed.
The Army requests that the
following paragraphs of the variance granted in PCB 87-38 be
changed as follows:
Paragraph 9(c)(1)
—
delete arsenic (total), barium (total),
cadmium (total), chromium (total hexavalent and total
trivalent),
nickel (total), selenium (total)
and total
polychlorinated biphenyl;
Paragraph 9(d)
—
delete arsenic, barium, cadmium, chromium,
nickel, selenium and total polychlorinated biphenyl;
Paragraph 9(c)(2)
-
sampling locations should be relocated
from mid-depth and surface to mid-depth and near bottom
because of the flow pattern of the return from the discharge
also the number and timing of the samples should consist of
two aliquots collected over a six hour period instead of
three aliquots collected over an eight hour period and
Paragraph 9(c)(4)
-
change the locations of the sample
sites.
(Pet.
at
3 and 4.)
The Army is requesting these amendments based upon the
results of eight years of testing that was required by PCB 83-25,
PCB 84-86 and PCB 87—38.
(Pet.
at 2.)
Testing was made a
condition of the variance in order to develop information for use
in future variances and requests for site specific relief.
The
results of these tests showed that certain parameters have never
violated a state standard in more than 500 samples downstream of
a discharge and only on a rare occasion did any exceed a state
standard in a sample representative of a discharge.
(Pet. at 2.)
The pre—dredging analyses confirm~minimum potential for these
parameters to violate state standards.
(Pet. at 2.)
The
analytical data from these tests are presented in References #1
through #19.
Eliminating these particular test would save over a
thousand dollars a day in testing costs.
(Pet.
at 3).
The
133—4
76
3
changes
in sample locations are requested to better describe the
size and shape of the discharge plume.
(Pet.
at 3.)
The new
locations were determined from fluorescent dye tracer testing and
prior water quality sampling locations.
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:
the
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.
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 wtll not necessarily follow
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
~33—477
4
consequences are outweighed by the arbitrary and
unreasonable hardship tha.t would be imposed if the
Illinois River became non—navigable.
The Agency recommends that Army be granted the modifications
to the variance as requested.
(Rec.
at 1.)
The Agency believes
that the Army has satisfactorily explained the rationale for the
deletion .of metals and PCB5 from the testing requirements of the
variance.
(Rec. at 5.)
The Agency states that the hardship
resulting from denial of the variance remains unchanged from
previous Board orders.
(Rec.
at 6.)
The Agency believes that the
requested changes to the variance will not result in a
substantial impact to the environment.
(Rec. at
6.)
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
(R 88-15)
proposal concerning the
dredging activities in the Illinois River.
This matter 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.
Paragraph
7 of the order will be modified to reflect the previous
proceedings.
The variance granted to the Army in PCB 87-38 will expire on
September 4,
1992.
The variance was granted because the burden
on the Army and commerce utilizing the river would outweigh the
environmental impact avoided if the variance were denied.
There
is nothing in the record to show that the burden or the
environmental impact have changed or would be altered by the
suggested modifications.
The modifications that the Army is
requesting are supported by the data submitted by the Army.
In
previous samples from dredging operations,
the metals which are
to be deleted from the testing procedure have occurred at levels
below the acceptable
level.
The elimination of these tests will
reduce the Army’s testing cost.
For these reasons the Board will
amend the order
in PCB 87-38
as requested by the Army.
The
amendments will effect Paragraphs
7 and 9 of the variance.
This opinion constitutes the Board’s findings of facts and
I
3.~—4
78
5
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 expire on September 4,
1992,
or upon
the date on which Army achieves compliance with
applicable water quality standards.
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
dredging of sediments not meeting Illinois EPA 401
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. ~l 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 Paragraph 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 Paragraph No.
2
dredging event based upon an elutriate test performed
in accordance with Paragraph 10.
Sampling and analysis
of the sediments shall include analysis for parameters
listed in Paragraph 9(d).
This requirement will be
fulfilled if the site has previously been sampled as
pursuant to Paragraph 9(a) within the 12 months prior
to the dredging event.
4.
Army shall conduct a Paragraph 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 Paragraph No.
2 dredging event, Army shall
consider and evaluate the use of mechanical dredging
133—479
6
with backline disposal, as opposed to hydraulic
dredging, for any such event under which less -than
50,000 cubic yards will dredged.
6.
For any Paragraph 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 file with the Board a petition for
site-specific relief from the above water quality.
By
December 1,
1991, the Army shall submit to the Agency
plans- and specifications for achieving compliance with
the applicable regulations.
8.
In advance of any necessary Paragraph No.
2 dredging
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 at the 11 sites identified in Attachment
#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 Paragraph 10, shall
be employed to analyze for parameters listed in
Paragraph 9(d).
b)
The sampling and testing requirements of Paragraph
3 of this order.
c)
During any dredging project, whether a Paragraph
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 ~pointslisted under Paragraph
9(c)(4):
specific conductance; turbidity,
oil and grease; dissolved oxygen;
total
suspended solids; total dissolved solids;
volatile suspended solids; total ammonia
13 3—4 8(J
7
nitrogen as N; pH; water temperature; lead
(total);
zinc (total); copper (total); and
mercury
(total).
2)
Sampling at the sampling points listed in
Paragraph 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
Paragraph 9(c) (4)
shall be done:
A)
On two consecutive days per week if a
12—inch dredge is used;
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,
sampling shall be performed 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:
I)
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
133—48
8
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’ off 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 Paragraph 9 shall be
analyzed for the following parameters with the
results of all chemical analyses being expressed
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 to be employed
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.
11.
By February 1,
1988, and annually thereafter for the
duration of the variance, Army shall submit to the
Agency the results of sampling under Paragraphs
3 and
9, the results of any evaluation under Paragraph 5, and
the steps taken to comply with Paragraph 7.
12.
Within forty-five
(45) days of the date of the Board’s
order, Army shall submit the followin9 Certification of
Acceptance to:
Illinois Environmental Protection Agency
Charles Feinen
Division of Legal Council
9
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
I,
(We),
,
having
read and fully understanding the order in PCB 91—113 dated May
21,
1992, hereby accept that order and agree to be bound by all
of its terms and conditions.
Petitioner
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.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~
day of
~
~-i
,
1992,
by a vote
of
7)
/~
C
~
,-~
-7
/)-(
~
~Dorothy M.
Gt~’nn, Clerk
Illinois Pol4ution Control Board
13
3—483
