ILLINOIS POLLUTION CONTROL BOARD

April

24,

1986

IN THE MATTER OF:

APPLICATiON FOR

LAKE

MICHIGAN

)

PCB 86-60

PERMIT NO.

187 LM FOR THE

CITY OF LAKE FOREST

)

DISSENTING OPINION

(by

B.

Forcade):

I dissent from the majority Order

because

it authorizes an

extremely large quantity of material

to be placed in Lake

Michigan with virtually no information on the pollution

consequences of that action.

Additionally,

I dissent

from the

haste

in which

final action was taken

today.

Action could have

been delayed one week

to secure fundamental

information which the

Board should have and

to provide

an opportunity

for public

comment.

To understand

the full implications

of the majority

order,

and the rationale for my dissent,

it

is necessary

to

review the permitting processes, past dredge and fill activities

reviewed by this Board,

and the factual record presently before

the Board.

The process

for securing Illinois governmental approval for

a fill project

in Lake Michigan generally

involves three steps:

1.

Securing 401 certification from the

Illinois Environmental Protection Agency

(“Agency”);

2.

Securing

a Permit from the Illinois

Department

of Transportation

(“IDOT”)

under I.R.S.,

chapter

19,

and;

3.

Securing Board concurrence on IDOT’s

permit pursuant

to I.R.S.,

chapter 19,

paragraph

65.

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

69-275

---

—2—

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 April

4,

1986)

contains an 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

ib) cause water

pollution.

Consequently,

I 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.

The second step

in the state permitting process

is the IDOT

Permit.

There

is

no statement in the Permit or

in the cover

letter

to the Board indicating that IDOT has made determinations

relating to water pollution.

After

review of many IDOT permits

sent

to the Board,

I must agree with the majority that:

-

.the

permit

system

of

the

Waterway’s

Regulation

Act

is

designed

to

utilized

the

expertise

developed

by

IDOT

in

assessing

the

impact

a project may have on the configuration

of

waterways

and

shorelines,

and

to

utilize

the

expertise developed

by

the

Board

and

the

Agency

in

assessing

the

impact

a project may

have

on

the

quality

of

the

waters

contained

within those waterways.”

Consequently,

I cannot rely on IDOT’s process

to perform an

evaluation of the water quality aspects of this project.

That

is

clearly

a function of this Board.

The last step

in the state authorization process

is Board

concurrence with the IDOT permit.

The Board has previously held

that

its role is:

To

determine

whether

the

facts

contained

in

the

record

demonstrate

that

the

proposed

activity

will

not

cause

a

violation

of

the

Environmental

Protection

Act

or

Board

regulations or adverse environmental impact In

Re:

Application

for Lake Michi~ganPermit, N~

114, PCB 85—134, March 14,

1986.

Thus,

under state

law,

this Board

is the last governmental agency

to review and decide whether

a proposed fill project

in Lake

Michigan may proceed without causing water quality problems.

69.276

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—3—

Under federal law a Section 404 permit from the Secretary of

the Army

is

required.

However,

the water quality aspects

of that

federal process are

in large part delegated

to the state

in

the

Section

401 certification process.

On April 23,

1986,

the Army

Corps made

a decision

to issue the federal Section 404 permit for

the Lake

Forest project.

Aside

from

a reference

to the state 401

certification,

the Section 404 permit contains no conditions or

limitations which would

indicate

a review of the water quality

impacts of

the project.

The conditions imposed indicate the Army

Corps’

decision

in this case was based on erosion and

navigation.

It

is probable that as

a general rule the Army’s

decision,

like that of

IDOT,

is concerned with navigation and the

configuration

of shorelines or waterways.

While this process

is confusing,

and involves many agencies

of government,

I believe that this Board

is

the last agency of

government

(federal or state)

that

is required to address the

pollution control aspects of

a Lake Michigan fill project.

In

that role,

and considering

the tremendous importance

of Lake

Michigan

to the people of Illinois and the nation, the Board has

a special duty

to ensure that all

of the facts are

in and all

of

the judgments are sound.

When today’s action

is measured against

prior Lake Michigan activities or other dredge and fill projects,

it

is obvious that the special duty has not been fulfilled.

This Board has significant

and recent experience with dredge

and fill activities.

From November

of

1982 through October

of

1984,

it reviewed three variance requests from the Department of

the Army seeking

to do navigational dredging on the Illinois

River

(PCB 82—136, November

19,

1982;

PCB 83—25, July 26,

1983;

and PCB 84—86, October

25, 1984).

In summary,

these proceedings

authorized

a

four-year program

to remove sediment from the river

and place

it on the banks

in a manner

to minimize the amount

of

material entering the water

column.

The record before

the Board

contained substantial background information on

the nature

of the

sediment

to be dredged, flows,

depths,

disposal methods and

character of the area.

In addition, and most importantly,

the

record contained chemical analyses of

a wide variety

of

parameters for sediment

in the areas where dredging was

anticipated and chemical analyses

of water quality in the

affected area.

In granting relief,

the Board adopted an Order

containing

four pages

of conditions relating

to monitoring and

analyses, restrictions on disposal methods,

and similar

conditions designed

to reduce the pollution impact.

An example

of the level

of detail

in the October

25,

1984, Order

is

paragraph 9),

C)

and

1):

(1)

Petitioner

shall

sample

the

following

parameters

at

all sampling points

listed

under

Paragraph

9,

c)

4:

specific

conductance;

turbidity;

oil

and

grease;

dissolved oxygen;

total suspended

solids;

69-277

---

—4—

total

dissolved

solids;

volatile

suspended

solids;

total

ammonia

nitrogen

as

N;

pH;

water

temperature;

lead

(total);

zinc

(total);

arsenic

(total);

barium (total);

cadmium (total); chromium

(total

hexavalent

and

total

trivalent);

copper

(total);

mercury

(total);

nickel

(total); and selenium (total).

In the Illinois River dredging proceedings,

I believe the Board

exercised sound

judgment based on adequate facts.

In

a similar vein,

the Board has experience with Lake

Michigan projects.

In PCB 84—72

(In Re:

Illinois Department of

Transportation;

Permit for American Toxics Disposal,

Inc., June

14,

1984), Board concurrence was sought

for

a project

to dredge

25 cubic yards

of contaminated sediment from Waukegan Harbor.

The sediment would not be returned

to the waterway but would

be

used on shore

in an experimental process to destroy poly—

chlorinated biphenyls.

The record contained substantial infor-

mation on project protocols and chemical analysis data.

The

project would use silt curtains to contain the contamination

stirred

up during dredging operations.

The only issue

of concern

was whether the silt curtains would contain the contamination for

a sufficient time period.

I dissented, stating:

OMC has claimed that ATD’s operation will stir

up

from

3.2

to

7.5

kilograms

of

PCB’s

which

will

be

resuspended

in

the water

column,

that

large

portions

of

resuspended

materials

may

not

resettle

for

approximately

40

days

and

that

silt

curtains

are

unreliable

beyond

one

or

two

days.

Many

of

these

arguments

cite

USEPA

publications

or

protocols

for

support.

Since

these

factual

arguments

are

of the

type

normally

encountered

in

Board

hearings,

and

since

the

record

before

us

does

not

contain

sufficient

factual

material

for

the

Board

to

reach

an

independent

conclusion

on

the

key

issues,

I

would

postpone

decision

until

a

hearing could be held.

While

I disagreed with the majority that the

life of

silt

curtains and sediment settling rates were adequately proven,

at

least

the theoretical

basis and factual data were present in the

record.

Again,

the Board carried out its required duties with

some semblance of theoretical

and factual underpinning.

More recently,

the Board dealt with

a request to dredge

40,000 cubic yards of

sand from the Waukegan Harbor entrance

channel,

In the matter

of:

Application for Lake Mich~~nPermit

No.

114 LM

for

the Department of

the Army ~orps of Engineers, PCB

69-278

---

—5—

85-134.

The documents conveyed to

the Board contained

information on the

scope and location of the dredging

as well

as

over

550 separate chemical analyses on the sediments.

Because of

difficulties determining which sediment analyses correlated with

which dredging area,

the Board set the matter

for hearing

(Order

of September

20, 1985):

This

matter

will

be

set

for

hearing.

At

hearing,

the Department

of Transportation will

be expected

to provide evidence

on:

1.

The

exact

locations

at

which

dredging and disposal will

occur.

2.

The

level

of

sediment

contamination

at each dredging location.

3.

Whether the anticipated dredging and

disposal

activity

will

cause

violations

of

Board

regulations

or

the Environmental Protection Act.

After hearing, comments filed by the Office

of the Attorney

General raised concerns that contamination levels listed

in the

data might cause subsequent water quality levels

to rise at the

disposal location.

The Board ultimately dismissed the Petition

on procedural issues

(the Army Corps

had proceeded with the

project, without Board

knowledge,

prior

to the scheduled

hearing).

However,

the Board was proceeding

to evaluate the

extensive factual record

on chemical contamination against

numerical standards existing

in our regulations.

In other words,

the Board was again performing the appropriate function.

The purpose

of this lengthy discussion of prior proceedings

is

to provide

a benchmark on the size of

the projects,

the wealth

of factual detail,

and

the depth

of Board scrutiny.

When the

present project

is measured against that benchmark,

the shortfall

is obvious.

The project contemplated under this permit

is

reasonably

described

in the record

(Environmental Assessment 14 February

1986).

Lake Forest

has approximately 3,400 feet of shoreline

that has suffered severe erosion.

To correct the problem, Lake

Forest will first construct offshore breakwaters and shoreline

revetments.

Second, Lake Forest will replenish the lost beach

area with approximately 200,000 cubic yards of

fill material.

Also,

Lake Forest will dredge about

1,500 cubic yards from the

Boat Launch harbor;

that material will

be used as shoreline

fill.

The shoreline protection aspect will utilize approximately

80,000 tons of armor stone

and 10,000 tons of

rock.

The majority

of this material will be placed 100

to 400 feet offshore.

The

69.279

---

—6—

shoreline replenishment is less well described, but appears

to

involve placing 150,000 cubic yards

of sand and 50,000 cubic

yards

of earth

fill in the area enclosed

by the breakwaters

for

the purpose

of building up and extending

the beach.

Most

of this

material would

appear

to be placed near or below the present

highwater mark.

Thus,

any contaminants in this beach nourishment

fill would appear potentially available

for

release

to the Lake

Michigan water

column.

The actual amount of contaminants that

would

be released

to the water column depends on many factors not

present

in this

record.

My primary concern

is not with the

shoreline protection material, my concern

is the beach

nourishment fill,

and the levels of contaminants

it may

contain.

While the record

in this proceeding

is voluminous,

information on contamination levels

in the fill material

is

virtually non—existent.

That limited

information

is reproduced

here

in

its entirety:

Temporary

water

quality

impacts

may

result

from the small

amount

of

dredging

(1500 cubic

yards)

for

the boat launch harbor.

This small

staging

area

of

protected

water

will

be

dredged to

a

uniform depth

of approximately

6

feet.

It

is currently

5 feet deep Lake Forest

datum

so

a

small

amount

will

be

required

if

any at

all.

The dredge spoil will consist

of

compact clay and will

be removed by

a dragline

or

clamshell

type

operation.

Hydraulic

dredging

is

not

anticipated.

The

dredged

spoil

will

be

used

as

fill

for

shoreline

facilities

and

will

be

placed

behind

the

southern

shoreline

revetment

after

the

revetment has been installed.

Chemical

impacts

to

water

quality

are

not

anticipated

because

the

fill material

will

be

clean,

and

existing

near—shore

sediment

analysis shows

insignificant concentrations of

pesticides

or

PCB’s.

Therefore,

sediment

resuspension

will

not

contain

significant

levels

of

pollutants.

(Environmental

Assessment,

p.

57).

This information

is inadequate

for two reasons:

first,

it

only addresses the 1500 cubic yards

to be dredged

from the launch

harbor

(less than 1

of the total

fill) not the 200,000 cubic

yards from some other

location, and second, statements of

“clean”

fill and “insignificant concentrations”

of contamination can

hardly

replace actual numbers.

In PCB 85—134,

the Board had over

500 chemical

analyses, covering many parameters,

representing the

entire material,

to

a level

of detection of parts per million.

69.280

---

—7—

find the

two narrative statements,

covering less than 1

of

the

material,

an alarming shortage

of data.

One possible reason

for the data shortage came from Lake

Forest’s April

23 filing at page

5,

where they explained the

consequences of delayed action

by this Board:

The City will

be unable

to benefit from a U.S.

Army

Corps

of

Engineers

dredging

project

scheduled for Waukegan Harbor this summer

from

which

the

City

is

currently

negotiating

the

receipt

of

$250,000

worth

of

sand

fill

material.

If

the

City

does

not

have

a

protected

beach

area

prepared

by

August

1,

1986,

we

will

be

unable

to

acquire

this

material and will increase our projected costs

by

$250,000.

A

30—day

delay

will

not

even

allow the City

to

be considered as a potential

recipient of

this resource.

If Lake Forest

is currently negotiating

for

a source

of sand fill

then presumably the actual source

is not yet finally determined,

and the contaminant levels

in that source are also unknown.

There

is

no information

in the record to contradict this

conclusion,

all

of the information supports it.

If the source

of

the materials and contamination levels

are unknown,

then

I find

any conclusions on water quality impacts to

be seriously flawed,

whether those

conclusions are made by the Agency in their

401

certification letter

or

by the majority

of this Board.

In effect,

today’s action by the majority authorized

placement

of 200,000 cubic yards

(over

500 million pounds*)

of

unknown material

in the project area.

If the contaminant level

for some parameter

of that material were

as low as one part per

million,

then the Board has authorized over

500 pounds

of that

contaminant

as potentially available for release

to the water

column.

The only available

information on the source

of the fill is

that

it may come from Waukegan Harbor entrance channel

dredging.

The Board

has some information within its public files

on Waukegan Harbor entrance channel contaminant levels from PCB

85—134.

While drawing conclusions

in this proceeding from data

in the last harbor dredging

is highly speculative,

it does

represent the best information available

to me:

*Using

the conversion on page

56

of the Environmental Assessment.

69.281

---

—8—

Pounds Potentially

Available for Re—

Concentration

in

lease at Lake Forest

Parts per million

Beach Based on 150,000 yd3

Parameter

from PCB 85—134

(409 million pounds)*

Lead

5

—

69

2,000

—

28,000 pounds

Arsenic

1

—

19

409

—

7,700 pounds

Chromium

5

—

103

2,000

—

42,000 pounds

PCB’s

.004

—

.278

1.6

—

113 pounds

With

the exception of the PCB’s,

each of the above chemicals is

subject

to Board regulation

in one or more media because

of its

potential

for adverse effects

on human health or

the environ-

ment.

PCB’s are regulated predominantly by the federal

government.

Whatever contaminants may

be present

in the fill material

actually used,

those contaminants will

be placed

in

a

5.7 acre

beach area that is utilized by approximately 25,000 men, women

and children annually for swimming and recreational purposes

(Environmental Assessment,

pp.

2,

50).

I believe

in such

circumstances this Board should undertake

a critical review of

the facts and that today’s action by the majority does not

represent such

a review.

Because of

the factual deficiencies

in the record,

I made

a

motion at

the Board meeting

to amend the majority order,

allowing

a short schedule for briefing and comments

on the critical

issues.

The key portion of that amendment

is

as follows:

Consequently,

the

Board will

establish an

expedited schedule

for the filing

of briefs or

public

comments

by

any

participant.

These

filings

should

be

restricted

to

the pollution

issues

over

which

the

Board

has

juris-

diction.

Additionally,

these

filings

should

attempt

to

provide

as

much

information

as

possible on the following concerns:

1.

Whether

quantities

of

material

from

Waukegan Harbor will be used as fill

material

and

what are

the

levels

of

contamination

in that material?

2.

What

are

the

sources

of

fill

material

other

than Waukegan Harbor

sand

fill,

and what are

the

levels

of contamination in that material?

*Using the conversion on page

56 of the Environmental Assessment.

69.282

---

—9—

3.

What

is

the

impact

on

water quality

and

water

quality

standards

of

placement

of

the material

described

in Nos.

1 and 2?

4.

In

the

absence

of

information

on

questions

Nos.

1

and

3,

can

the

Board

place

meaningful

restrictions

on the activity

or

on

the levels

of

contamination

in

the materials

used

such

that

it

will

not

cause

pollution,

and

what

would

those

restrictions be?

5.

Whether

the

proposed

activity

will

cause

a

violation

of

the

Environ-

mental

Protection

Act

or

Board

regulations

or

cause

environmental

harm?

6.

Is

the

record

before

the

Board

adequate

to make

a

decision,

and

if

not, what

types of information could

be

produced

at

a

public

hearing

on

this matter?

The amendment would have allowed approximately one week for

comments and Board decision,

leaving ample

time for the May

5

bond sale to proceed.

The amendment failed

to carry.

I can only

conclude that the majority chose not

to inquire

into these

issues.

In summary,

I find today’s majority action premature and

factually unsupportable;

accordingly,

I dissent.

I,

Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was

submitted on the

___________

day of

______________,

1986.

Dorothy

M.

G.~inn, Clerk

Illinois Pollution Control Board

Member

of the Board

69.283