ILLINOIS POLLUTION CONTROL BOARD

February 5, 1987

IN THE MATTER OF:

APPLICATION FOR

LAKE

MICHIGAN

)

PCB 86—139

PERMIT NO.. 204LM FOR THE

U..S.. ARMY CORPS OF ENGINEERS,

CHICAGO DISTRICT

ORDER OF THE BOARD (by J..D.. Dumelle):

The Board Order of December 5, 1986, approved the applica-

tion of the Illinois Department of Transportation (“IDOT”) for

U..S.. Army Corps of Engineers (“Army”) Lake Michigan permit No..

204LM, to dredge the navigation channel to Waukegan Harbor,

provided certain sampling and analysis conditions were met. The

Chairman was authorized to countersign the permit.. On December

30, 1986, the Army filed a motion for reconsideration raising

questions on the wisdom and efficacy of the sampling and analysis

conditions. On January 14, 1987, IDOT also moved for

reconsideration based on objection to the sampling and analysis

program.. On January 21, 1987, the Attorney General filed

comments on the motion for reconsideration, opposing changes in

the sampling and analysis program. The motion for

reconsideration is granted..

Procedural Objections

The Army and IDOT have objected to the imposition of

conditions for testing by the Board.. Both argue that the 401

certification procedure by the Illinois Environmental Protection

Agency (“Agency”) is the appropriate vehicle for conditions to

ensure compliance..

The exact role of the Agency’s 401 certification in state

review of Lake Michigan fill projects has never been fully

explained to the Board.. Under Section 401 of the Federal Water

Pollution Control Act (42 U..S..C.. Section 1251, et seq..), such a

certification is required prior to issuance of a federal permit

by the Secretary of the Army (under Section 404 of that Act) for

discharge of fill material.. Under state law, IDOT may issue Lake

Michigan fill permits only where they determine “that the deposit

or deposition of dredge material will not cause water pollution

as defined in the Environmental Protection Act” (IRS, ch.. 19,

par.. 65).. IDOT may require a 401 certification letter as part of

their procedures.. Whatever legal role the 401 certification

letter plays in the state permitting process, there is nothing in

this record to indicate what facts were before the Agency at the

time it made its decision to issue the letter, nor is there

information on the criteria and procedures by which the Agency

determines whether or not water quality will be violated. The

401 certification letter (dated August 5, 1986) contains an

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introductory paragraph briefly describing this project.. The

remainder of the certification is a standard form letter seen by

the Board in many other cases; it states that the proposed

project can be completed without causing water pollution so long

as the applicant does not (condition la) cause violation of water

quality standards, or (condition lb) cause water pollution..

Consequently, the Board cannot legally or factually rely on this

letter as a reasoned judgment, based on sound criteria and

adequate facts, that water pollution will not occur under the

proposed project..

As expressed in the December 5, 1986, Order, the Board

construes its statutory mandate from paragraph 65 of the

Waterways Regulation Act, as a command “to determine whether the

information in the record demonstrates that the proposed activity

will not cause a violation of the Act or Board regulations or

adverse environmental impact..” This command requires the Board

to make decisions.. The fact that other agencies of government

may have contemporaneous authority to issue decisions and impose

conditions does not obviate the Board’s statutory mandate..

Practical Objections

The Army has raised several practical objections to the

sampling program:

......The Corps has sampled and tested the

sediments in accordance with state 401

certification procedures..

This analysis

shows, as did the analysis done in 1981 and

1984, that the materials to be dredged are

clean lake sand..

That assertion is rebutted by the facts in the record.. For

nearly all the materials for which the Board has commanded

analysis, the most recent testing from the nearest location shows

heavily polluted or moderately polluted sedirnents*. On cross—

examination, the Army agreed these samples showed heavy pollution

(R.. 71) and that they represented the closest and most recent

testing (R.. 23, 26). Semantic arguments by the Army, regarding

“clean sand,” will not change the numerical analyses values

recorded in 1981 and 1984..

The second objection is that the acquired monitoring data

will be insufficient for a meaningful research program.. The

Board agrees that a comprehensive understanding of the dynamic

processes involved would require more extensive testing and

analysis than required in the December 5, 1986, Order, and the

*

Arsenic, chromium, copper, cyanide, lead, and zinc are above

heavily polluted criteria; Kjeldahl nitrogen, ammonia nitrogen,

barium and manganese are above the moderately polluted criteria

(December 5, 1986, Order, p.. 2).

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Board would much prefer having such information before it..

However, in balancing the navigational needs against the

likelihood of pollution, the Board concludes that only a very

basic testing program is appropriate at this time to evaluate the

general consequences of the dredge and fill project on the water

column and possible consequences to the Lake Michigan

environment.. Navigation channel dredging appears to be an annual

or biennial event.. This monitoring data will provide the Board

with a rough evaluation of the consequences, which can then be

used to more carefully evaluate any future requests.. Should more

comprehensive testing appear needed, the Board can require such

testing as a condition precedent to any future dredge and fill

activity of a similar nature..

Technical Objections

The Army argues the requirement to sample “upcurrent” of the

disposal location will be difficult to implement, as will the 5

dry weight criterion for further sampling as set forth in the

Board’s December 5, 1986 Order.. While the Board does not agree

that those provisions are as difficult to implement as the Army

indicates, upon review of the comments and the monitoring program

set forth in the earlier order, the Board has modified that

program to eliminate those requirements.. The Board has made

further modifications which are directed toward increasing the

utility of the program.. These revisions require more sampling of

sediments at the dredging location and the disposal site prior to

the dredging and disposal activities and reduce water column

Sampling. This should allow for a more accurate determination of

changes caused,by the dredging activity and focus more on the

water quality which is of greater concern than the short—term

disruption caused by the disposal operation..

The Board hereby vacates conditions (a)—(k) of the December

5, 1986 Order in this matter, replacing them with the following

conditions:

a) Prior to dredging, a minimum of three sediment borings

shall be taken from the area to be dredged. The borings

shall be in approximately the northeast corner, center,

and southwest corner of the area to be dredged.. At each

locati n, a sediment sample shall be taken from the

first six inches, and at subsequent two—foot intervals

until a sample at least two feet below the proposed

project depth is obtained..

b) Prior to disposal, a minimum of two sediment samples

shall be obtained from the top six inches of sediment at

the proposed disposal site.. The samples shall be taken

along the north—south axis of the disposal area such

that one is taken at this point approximately 1/3 the

length of the axis and the other at this point

approximately 2/3 the length of the axis, as measured

from the northern boundary..

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c) Two to three weeks after disposal, two additional

samples shall be taken of the top six inches of sediment

at the disposal site in approximately the same locations

as the samples in (b) above..

d) Six water samples shall be taken at the disposal site,

two feet above the lake bottom, two of which shall be

taken prior to disposal, two of which shall be taken

during disposal and the other two which shall be taken

two to three weeks after disposal at approximately the

locations specified in (b) above..

e) All water samples shall be analyzed for the following

parameters

——

total suspended solids (TSS), total

dissolved solids (TDS), turbidity, arsenic, barium,

chromium, copper, lead, manganese, mercury, zinc,

cyanide and ammonia nitrogen..

f) All sediment samples shall be analyzed for the same

parameters identified above in item Ce), above, for

water samples except TSS, TDS and turbidity. In

addition, all sediment samples shall be analyzed for

particle size distribution.. Specific attention shall be

given to determination of the percent passing through a

standard 62 micron sieve (#230 U.S..)..

g) All water and sediment samples shall be analyzed for

phosphorus (as P) and total PCBs..

h) All analytical testing shall be consistent with 35 Ill.

Adm.. Code 301.104..

i) A report precisely describing the monitoring program

developed and sampling results to comply with these

requirements shall be submitted to the Attorney

General’s office, the Agency and the Board within 60

days of the completion of disposal. This report shall

include analytical data for all samples taken and an

analysis of the impact of sediment disposal on Lake

Michigan water quality during this project.

Additionally, it shall include a description of the

quality control and quality assurance programs operative

during this monitoring program and the results of

quality assurance checks..

IT IS SO ORDERED..

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I, Dorothy M.. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

~

day of

_____________,

1987, by a vote of

____________

~t~1~-~4; ~

Dorothy M.. /Gunn, Clerk

Illinois Pollution Control Board

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