ILLINOIS

POLLUTION CONTROL BOARD

June 14,

1984

IN

RE:

ILLINOIS DEPARTMENT OF

)

PCB 84—72

TRANSPORTATION; PERMIT FOR

AMERICAN TOXICS DISPOSAL, INC.

DISSENTING OPINION (by B. Forcade):

Today,

the majority

of the Board has granted approval for

the Chairman to countersign

Illinois Department of Transportation

(“IDOT”)

Permit No, 163LM

(“the permit”).

I believe

the

Board

has made a premature and

incorrect decision; accordingly,

I

dissent,

Since

the

majority order does not provide factual or

procedural background,

I will supply it here.

American Toxic Disposal,

Inc.

(“ATD”) wants to dredge

up to 25

cubic

yards of polychlorinated

biphenyl

(“PCB”) contaminated

sediment

from

the bottom

of slip #3 in Waukegan Harbor,

This

material

will

be used

in an experimental PCB treatment process.

Presumably

this process,

if

successful, could

be

one option

for a

solution to

the problem

of PCB contamination of Waukegan Harbor.

Consistent

with Illinois

law,

ADT

made application for

an IDOT

permit,

IDOT referred

the matter to this Board

for concurrence.

Under

Illinois

law,

ch,

19,

Ill.

Rev.

Stat.

para.

65,

§

18,

it

is unlawful

to do any

work of any kind in Illinois waters without

an IDOT

permit.

Section

18 further provides that:

However,

except as

provided in this Act,

no

permit

shall

be issued

or renewed authorizing any fill or

deposit of rock, earth,

sand, or other material,

or any

refuse matter of any kind or

description in Lake

Michigan except with the concurrence of the

Pollution

Control Board,

and no such permit is valid without such

concurrence

Nothing herein shall be

construed to authorize

the discharge or other disposition of materials of

any kind into Lake Michigan without first obtaining

a permit signed by the Secretary of the Department

of Transportation and

countersigned by the Chairmen

of the PoJiution Control Board acting on behalf of

such Board, and any person,

corporation, company, city

or municipality, or other agency, who or which

(1)

discharges or disposes

of any such materials

into Lake

Michgan without a

permit or in violation of a permit,

or

(2)

does any of the

things prohibited by this

Section shall be guilty of a

Class A misdemeanor,

58~357

---

Here,

it

appears

that

those sediments which are stirred up

or resuspended by

the

dredging operation,

but not removed from

the harbor, will be “materials deposited”

in Waukegan Harbor.

It

also appears that Waukegan Harbor is contiguous

with,

and

therefore, within the definition of,

Lake Michigan.

Later,

Section

18 requires IDOT to determine that dredged materials

deposited

in Lake Michigan will not cause water pollution as

defined in the Environmental Protection Act

(“Act”).

Presumably,

it is this determination for which

Board concurrence must be

sought.

After ATD applied for the IDOT permit,

the

U.S. Army Corps of

Engineers

(“The Corps”), Illinois Environmental

Protection Agency

(“IEPA”)

and IDOT issued a joint

public notice on April

17,

1984,

requesting comments on the proposed

dredging activity on or

before May

1,

1984,

On May 1,

1984,

Outboard Marine Corporation

(“OMC”)

filed comments with IDOT

requesting more information,

more time, and a public hearing.

On may 24,

1984,

repre-

sentatives

of OMC,

ATD, IDOT,

the USEPA,

and the Corps met to

discuss OMC~sconcerns.

At the conclusion of that meeting, the

public comment period was extended

until June 6,

1984.

On June

7,

1984,

IDOT received comments from

OMC on the proposed project.

OMC objected to the permit issuance

and requested a full hearing.

No hearing was held.

IDOT issued the permit, effective June

14,

1984.

On June

13,

1984,

IDOT filed the

permit and some

related

documents with this Board,

On June

13,

1984, OMC filed a Petition

for Hearing in this matter. On June

14,

1984,

the majority of

the

Board concurred with IDOT,

At the Board meeting, representatives

of OMC and ATD addressed the Board and a

June

12,

1984 letter

from the Corps

to OMC was filed by ATD,

The Board

also denied

OMCVs Petiton for Hearing.

I dissent from the majority for three reasons.

First,

the

record does not show that IDOT made a

determination, based on

facts,

that the permitted activities will

not cause

a violation of

the Act,

Second,

OMC was denied a hearing, contrary

to

Chapter

19.

Third, OMC~sclaims are neither addressed

nor refuted

in the

record before the Board.

Under chapter 19,

Ill. Rev,

Stat,, para.

65,

§

18,

the

deposit of dredged material may occur only where IDOT “determines

that the deposit of dredged material will not cause water

pollution,”

as defined in the Act.

In a May 23,

1984

letter

to

OMC,

IDOT stated:

The Department of Transportation~sjurisdiction in this

matter is limited to considerations regarding the

dredging portion of the project,

We are relying on

input from the Illinois Environmental Protection Agency

and the US Environment Protection Agency regarding

the pollution control aspects of the project in our

consideration of permit issuance.

The

USEPA has

---

indicated

that

the

information included in the

“Protocol

to Dredge” addresses their

requirements,

and

the

ISPA

has

indicated

that

the

project

may

be

completed

without

adverse effects.

Here,

the

record

contains

on April

26,

1984 letter from

IEPA

to

the

Corps

stating

that

ATD~s

proposal,

if

carefully

planned

and

supervised, may be

completed

without causing water pollution

as

defined in the Act,

but, requesting as a

condition

of the permit

that ADT shall

not

cause

water pollution as

defined in the

Act.

In a May 2,

1984

letter

to the Corps, USEPA requested

8 technical

conditions,

none

of

which

directly address water pollution as

defined in

the

Act,

Both of these letters

predate OMC~s

expression of concern about environmental impact

of the dredging

and neither specifically address OMC~s

concerns:

failure

of the

silt curtains and the settling time for

the amount of PCB

contaminated sediment that is stirred

up by the dredging

operation.

The

record

before

the Board does not show fact—

finding

by IDOT on the issue of

water pollution, nor

fact-finding by IDOT on

OMC~sconcerns.

Section 65 of chapter

19

also provides:

Subject to the notice

and hearing hereinafter

provided

for,

where

a permit

is

sought for a structure,

fill,

or

deposit

in

a slip, the Department shall

require

as

condition

precedent to the issuance

of

such

permit,

a

signed

statement

approving

such action by

all

riparian

owners whose access to public waters will be

directly affected by such structure,

fill,

or

deposit.

No

such

permit

shall be issued without

the

approval

of

the Governor and without a

public

hearing,

10

days~’

notice of the time, place, and

purpose

of

which is published in a newspaper of

general

circulation

in

the county in which such slip is

located...

Since this permit is sought to cover the deposition of

contaminated

sediments

stirred

up

by the dredging of slip #3,

a

hearing

should

have

been

held,

OMC requested a hearing.

No such

hearing

was

held,

I

would

have provided OMC a hearing before the

Board

to

raise

its

concerns,

My

last

concern

is

the

nature

of OMC’s concerns.

OMC has

claimed

that

ATD~soperation

will

stir

up from 3.2 to 7.5

kilograms

of

PCBs

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 tlpe normally encountered in Board hearings,

and

since

the

record

before

us

does

not

contain

sufficient

58~359

---

—4—

factual

material for the Board

to reach an independent conclusion

on the key issues,

I would postpone

decision until a hearing

could be held,

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby

certify

that

the

above

Dissenting Opinion

was

submitted

to me this

~

day of

~

Dorothy M. Gunn,

Clerk

Illinois Pollution Control

Board

Board Member

58-360