ILLINOIS POLLUTION CONTROL BOARD

July

26, 1983

DEPARTMENT OF THE ARMY,

)

Petitioner,

PCB 83—25

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

MS. BERNADINE McGUIRE, ATTORNEY AT LAW,

APPEARED FOR PETITIONER,

DEPARTMENT

OF THE ARMY.

MR. GARY KING, ATTORNEY AT LAW, APPEARED FOR RESPONDENT, THE

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD

(by J.D.

Dumelle):

The Department of the

Army,

Rock Island District, Corps

of Engineers

(“Army Corps”) has proposed to dredge up to 25

sites on the Illinois River waterway between river mile 80.2

and 230.2.

The three year project

is to remove recently deposited

bottom material

as necessary to restore proper channel dimensions

for safe navigation.

PROCEDURAL HISTORY

On November 18, 1982,

the Illinois Environmental Protection

Agency (“Agency”)

forwarded the Army Corps’ request

for a provisional

variance from certain water quality standards for maintenance

dredging of the Illinois River between miles

147 and 148 near

the mouth of the Mackinaw River.

On November 19,

1982, the Board granted the provisional

variance with the nine conditions requested by the Agency.

(PCB 82—136,

Board Member Goodman concurring, Board Chairman

Dumelle dissenting.)

53-81

---

On

February

28,

1983,

the

Army

Corps

filed

a petition for a

five—year

variance

to

allow

for

bankline

or

open

water disposal

of

sediment

dredged

from

‘~the entire

Illinois

Waterway

between

miles

80.2

and

230.2~

(Pet.

p~2).

In

a

March

24,

1983,

Order,

the

Board

listed

several

deficiencies

of

the

petition

for

variance,

and

allowed

45

days

for

filing

an

amended

petition.

On

May

6,

1983,

the

Army

Corps

filed

an

amended

petition

for

variance,

on

June

8,

1983,

the

Agency

recommendation

was

filed,

and

on

July

i,

:1983,

the

Army

Corps

filed

a response

to

Agency

recommenda-

tions.

A

hearing

in this matter

was

held on July

14,

1983,

in the Peoria

Public Library,

Conference Room,

Peoria,

Illinois.

The

Army

Corps

filed

a

Memorandum of

Law at that hearing and

previously filed

documents were introduced

~ePresent~ai~eRe~iest

The

Army

Corpse

amended

etition

for

variance

seeks

relief

from

Water

Quality

Standards

for

three

years

rather

than

the

five

years

requested

in

the

February

28,

1983,

petition

for

variance,

and

seeks

more

comprehensive

relief::

Sections

302,203

(Unnatural

Turbidity),

302,206

(Dissolved

Oxygen),

302.208

(Total

Lead,

Total

Cadmium,

Total

hexavalent Chromium) and

302. 212

(Ammonia

Nitrogen

and

Un-ionized

Ammonia).

The Agency

recommendation approves

of the

variance

request

subject to various

conditions

that

primarily

concern

monitoring

sediment and

water

quality

before

and

during

the

dredging

and

bankline

disposal

operation.

The

Army

Corps’

response

to

Agency

recommendations

‘basically concurs with the

Agency~s recommendations

to

the

Boar&

(91

1),

but

“perceives

certain

philosophical

differences’s,

that

~may

he

only

a

matter

of

semantics”

(91

2).

The

Natu re

of

the

l~c

t~i~y~

When sedimentary material accumulates on

the

bottom

of

a

navigable

waterway,

such

as

the

Illinois River,

it

may

impede

navigation.

Dredging

is

the

underwater

excavation

of

such

material

(Am, Pet.,

P.

3).

A

commonly

used

excavating

machine

is

the

cutterhead

hydraulic

pipeline

dredge

which

consIsts

of a

rotating

blade

device

that

is submerged

to

dislodge

bottom

material;

behind the cutterhead,

suction

draws

the

dislodged

material

and

water

into a pipe

(Am.

Pet. p.3).

This

water/material

slurry

or dredge

material

is

transported

through

the

pipes

and

pumps

to

its

intended

placement

or

disposal

site

which

may

be

a

maximum of

one and one—half

miles

from

the

cutte.rhead

( Am.

Pet..

pp.

3—4

53-82

---

—3—

Alternatively, the dredging operation may be done by clamshell,

dragline, backhoe,

or bucket ladder,

These devices mechanically

lift

or scoop the sedimentary material

from the bottom of the

waterway for deposit on a barge or placement on the disposal site

(Am. Pet., p.3).

Dredging, whether by cutterhead hydraulic or

mechanical means,

is merely the removal of material from the

river bottom,

The disposal of dredged material is a separate act

which

can

occur

miles

from

the dredging site

(Pet,

Memo, of Law,

91

II).

Although none of the parties chose

to explain the terminology

or

procedures

to

the

Board,

it

appears

there

are

three

common

methods

of

disposal:

open

water,

bankline,

and

confined.

Open

water

disposal

may

mean

that

the

dredged

material

is

simply

dumped

back

in

the

same waterway from which it

was

removed,

The

original

petition

for

variance

requested

“bankline

or

open

water

disposal

of

dredged

material”

(Pet.,

p.2),

but

the

amended

petition

neither

includes

nor excludes

this

option.

It

would

appear

that

in

this

disposal

option

100

of

the

dredged

material

is

discharged

to

the

navigable

waters,

Bankline

disposal

implies

that

the

dredged

material

is

placed

on

the

banks

of

the

river

where

some

portion

of

the

water/material

slurry

may

return

to

the

river

with

or

without

restriction.

That

portion

of

the

dredged

material

which

returned

to

the

waterway

would

be

a

discharge.

That

portion

which

remained

on

land

would

not.

Confined

disposal

involves

placing

the

dredged

material

in a

site

“sized

to

allow

suitable

retention

time

for

water

quality

improvement

before

the

return

of

the

dredged

water

to

the

receiving

stream”

(Am,

Pet,,

p.6),

Only that portion of the dredged water

which returned to the receiving stream would be

a discharge.

The discharge of dredged material may have an impact on the

receiving stream.

That impact will depend on many factors,

including:

the characteristics of the dredged material (sediment

and ambient water), hydrologic and meteorologic conditions before

and during the activity,

and the disposal option

(Am, Pet.,

Legal

Requirements

The

Board has not adopted “effluent limitations” that apply

to the discharge of dredged material.

However, such discharges

are

subject

to

Section

304.105,

Violation

of

Water

Quality

Standards.

Anyone wishing to discharge dredged materials to the waters of

the

United

States

must

apply

to

the

Secretary

of

the

Army

for

a

permit.

Section 404 of the Clean Water Act,

33 U.S.C. §1344.

Also,

Section 401 of that act,

33 U.S.C.

§1341, provides that any

applicant for such a permit,

including the Army Corps, must seek

certification,

from the state in which the discharge will originate,

53-83

---

—4—

that the discharge will not violate water quality standards.

The

Army Corps applied to the Agency for §401 certification, and the

Agency issued a conditional certification that water quality

would not be violated so long as the material to be dredged met

certain parameters

(Amend.

Pet,,

p.

19).

Those parameters appear

to evaluate sediment grain size and the presence of polluted

materials

(Rec.,

pg.

10),

and somehow apply the Board’s water

quality standards (Rec.,

p.

6).

Neither party has submitted the

theory or standards for such process into the record in this

proceeding.

Whatever these parameters may be,

it appears the

Army Corps is free

to

conduct its maintenance dredging and

correlated discharge of dredged material without Board action

for

those sediments and disposal procedures which pass the Agency

certification

parameters.

This presumes that the discharges will

not cause violations of any Board water quality standards.

For

those sediments that do not pass the Agency certification parameters,

Section 401 of the Clean Water Act,

33 U.S.C.

§1341,

precludes

discharge of the dredged material until the standards are waived

in some manner,

In one short sentence on page 19 of the Amended Petition for

Variance, under

a caption entitled “Analysis of Applicable Federal

Law”, the Army Corps

finally

explains

that

the

present

request

for

water

quality

standards

variance

only

covers

impacts

of

discharge of dredged material

from sediments that fail

agency

certification parameters.

Any dredging and discharge that meets

certification procedures will proceed, presumably,

as needed.

Activity

Affected

by

the

Variance

Request

Maintenance dredging is intended to ensure navigability.

Until navigability is

threatened or impaired at some location the

Army

Corps

will not know where dredging is needed.

Until the

dredging location

is

known,

representative sediment analyses

cannot be done to determine compliance or non—compliance

with

the

certification parameters

(Rec.,

pp.

2—3),

Discharge of dredged

material typically occurs adjacent to the dredging

(Am.

Pet.,

p.

5).

Historically (1952—1982) dredging in the Illinois river has

occurred along the 36.5 miles of the 150—mile length identified

in Attachment

1 of the Amended Petition for

Variance,

Three

unnumbered exhibits to the original Petition for Variance contain

substantial sedimentary

analyses from the Illinois

River but it

is uncertain how these relate to the certification parameters.

A

typical dredge operation in the Illinois River would remove

68,000 cubic yards of slurry

and

solids.

Depending upon

the

solids content (10-20)

this would be 69 to 137 million gallons

of dredged material

(Am.

Pet,,

p.

5).

The record does not show

how much discharge would return to

the river

in such a typical

event,

nor its composition.

In an average year,

three such

events would occur, with an average length of 1½ miles

(Am.

Pet.,

p.

5),

53-84

---

—5--

A

1982

discharge

of

dredge

material

from

sediments

not

in

compliance with the

certification

parameters

did

not

cause

a

water quality violation.

(Am. Pet.,

p.

6)

(Rec,, p.

5).

However, the Agency believes sediments near the Peoria Pool

(Sites 16 to 22 of Am. Pet.,

Ex,

I)would be more polluted

(Rec.,

p.

6).

In the absence

of a variance, the Army Corps would be unable

to conduct any necessary dredging of sediments that failed the

certification parameters or would be required to dispose of these

sediments in a confined disposal area

(Rec,,

pp.

3—4).

A dispute between the Army Corps and the Agency as to who should

pay for the confined disposal may postpone site aquisition

(and dredging)

for years

(Rec.,

p.

4)

(Am, Pet.,

p.

13).

Thus, without a variance or other relief, dredging on sediments

that fail certification is unlikely to occur for years.

If any

such sediments impeded navigation, commerce on the Illinois

River would stop.

~hi

The Illinois River is a main pathway for commerce.

In 1981,

the anticipated area for which the variance is requested passed

over four billion dollars worth of commodities.

If the Illinois

River became obstructed,

past studies indicate alternative trans-

portation modes would cost users an additional $150,000,000 annually

(An,. Pet., p.2)

(Rec,, p.3).

This consequence could occur

rapidly because

of

the potential for accumulation of

sediments

that

fail

the

certification

parameters.

Discussion

This

proceeding

places

the Board

in a

difficult

position.

The

parties provided little or no information on important

questions:

What

is

the standard for a non-certified sediment;

can

its

volume

or

location

be

estimated in any way; what is the

volume and character of discharge from a typical dredge; what might

it be from a non-certified

sediment dredge?

Nor

have

the

parties

provided the Board with even rudimentary information on methods

for

open

water

or

bankline

disposal

that

would

allow

the

Board

to

choose between them or place restrictions to reduce the likelihood

of environmental harm from the discharges.

Basically, the parties

have

asked

the

Board

to

either

grant

a

variance

they have agreed

on or risk stopping Illinois River commerce.

53-85

---

—6—

Because of the severe hardship that could result

if the

variance was denied the Board today grants

a variance.

But, that

variance

is

for

a

shorter

term

than

requested

and

provides

for

the

development

of

information

that will allow for more reasoned

decisions on any future variance requests.

The

parties

jointly

have

argued

that

the

Resource Conservation

and

Recovery

Act,

42

U.S.C. §6901

et!~.,

and

Chapter

7,

Illinois

Pollution Control Board Rules and Regulations, do not apply to

the

proposed

disposal

of

dredged

material

(R,

12—28,

Pet.

Ex.C).

Because

the

present request for variance from water quality

standards

does

not

require

that issue be decided, the Board

declines

to

do

so.

The Army Corps has argued that the act of dredging cannot

be

regulated

by

the

State

of

Illinois

(R.

18—19,

Pet.

Ex.

1).

The

Agency

offered

no

opinion.

Because

the

Army

Corps

requested

a

variance

for

water

quality

violations

caused

by

the

discharge

of dredged material,

the Board need not and does not decide the

applicability

of

Board

rules

and regulations to the act of

dredging.

The Board notes that in its reference to Illinois EPA 401

certification #C-157—82 in today’s order it does not intend

approval of that document or its procedures as the Board

was not provided with any documentation on this matter.

This Opinion constitutes the Board’s

findings of facts and

conclusions of law in this matter.

ORDER

Petitioner,

Department of Army,

Rock Island District,

Corps

of Engineers,

is granted a variance from Section 304.105

as

it

applies to Sections 302.203,

302.206,

302.208

(Total Lead,

Total

Cadmium, and Total Hexavalent Chromium only), and 302.212, subject

to the following conditions:

1.

This variance will expire on August

1,

1984.

2.

This variance will apply only to violations of water quality

that may occur as

a result of discharge

of dredge 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 Waterway between river

miles

80.2 and 230.2,

as specified

in Attachment

#1 to the

Amended Petition for Variance filed on May

6,

1983.

For

purposes of this Order these shall be known as Paragraph

#2

dredging events.

53-86

---

—7—

3.

Prior

to

beginning

any

dredging

event,

Petitioner

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

purposes

of

determining

whether

such

cut

is

a

Paragraph

12

dredging

event.

Sampling

and

analysis

of the sediments shall be determined by the Petitioner

and

the Agency, but shall include analysis for parameters in

Paragraph 10,d).

4.

Petitioner shall conduct a Paragraph 12 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 12 dredging event, Petitioner shall consider

and evaluate the use of mechanical dredging with

bank

line

disposal, as opposed to hydraulic dredging, for any such

event under which less than 50,000 cubic yards will be

dredged.

6.

For any Paragraph 12 dredging event, Petitioner 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.

If analysis under Paragraph

3 or Paragraph 10,a) disclose that

sediments fail Illinois EPA 401 certification IC—157—82, the

Petitioner shall immediately begin planning for the location,

development and construction of a confined disposal facility,

and investigate alternatives, innovative or otherwise, for

controlling pollutants in a manner which minimizes the need

for confined disposal facilities.

Petitioner shall fully

cooperate with the Department of

Transportation

in

this

planning effort.

8.

In advance of any necessary Paragraph 12 dredging event,

dredging project is scheduled to begin.

9.

Petitioner shall acquire information and prepare a report on

Part 302 Water Quality Standards.

This report, at a minimum,

shall include:

a)

a description of the types of dredging procedures

States;

b)

a description of the

types

of disposal procedures

waters of the United States;

---

—8—

c)

for each procedure in a)

and

b), a description of the

factors

which

influence

the

volume

and character of

discharge

of

dredge

material

to

navigable

waters

of

the

United

States;

d)

for

each

procedure

in

a)

and

b),

methods

of

reducing

the

volume

and

Part

302

pollutants

in

the

discharge

of

dredge material;

e)

a copy of, and explanation of, Illinois

EPA

401

certification 1C-157-82 and any subsequent modifications;

f)

a copy of, and summary of, all testing results obtained

results Petitioner believes would be relevant.

g)

any

steps taken under Paragraph 7.

This

report shall be submitted to the Agency and the Board at

least 90 days prior to the termination of this variance.

10.

a)

On an annual basis, a survey of existing sediment and

water quality at the 11 sites identified in Attachment

11 to

the

Amended Petition for Variance with a historical

dredging frequency average of once every ten years or

less.

No less than three sediment 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

Petitioner and the Agency based on the size

and

shape

of the area to be dredged; sediment samples shall be

analyzed as set forth in Paragraph 10,d).

At the time sediment samples are collected, ambient

surface and mid-depth grab water samples shall be

collected.

These samples shall be analyzed for:

water temperature, dissqlved oxygen, pH, specific

b)

The sampling and testing requirements of Paragraph 3

of this Order.

c)

During any dredging project, whether a Paragraph 12

dredging

event

discharge character shall be monitored as follows:

1.

Petitioner shall sample

the

following parameters at

all sampling

points listed under Paragraph 1O,c)4:

specific conductance; turbidity; oil and grease;

dissolved oxygen; total suspended solids;

volatile suspended solids; total ammonia nitrogen

as N; pH; water temperature; lead (total);

53-88

---

—9—

zinc

(total);

arsenic

(total); barium

(total);

cadmium (total); chromium (total hexavalent);

copper

(total);

mercury (total);

nickel

(total);

and selenium (total).

2.

Sampling at the sampling points listed in

Paragraph 10, c),4 shall

be at surface and

mid—depth elevations between mid-channel and the

bank on which disposal occurs, or at a point

representative of the discharge.

3.

Sampling at the sampling points listed in Paragraph

10, d),4 shall be done daily during the period of

the dredging by 8-hr composite samples with

3

aliquots.

Petitioner shall report the river

velocity and height for each day of the dredging.

4.

Sampling

shall

he

done

at

the

following

points:

a.

r~t a point upstream of the influence of the

dredging, hut 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

three points downstream of the discharge:

1)

at half the distance to the periphery of

the mixing zone and

3)

at twice the distance

to the periphery

of the mixing zone.

The

“mixing zone” shall be defined as an area

equal

to 25 percent of the cross—sectional

area of

the stream or the area of

a circle

with a radius of 600 feet,

whichever is

less.

d.

at

three

points

representative

of

the

discharge

of

dredged

material.

d)

Sediment

samples

taken

under

Paragraph

10

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, total polychiorinated

biphenyl,

arsenic, barium, cadmium, chromium, copper,

mercury, nickel,

lead, selenium,

and zinc.

53-89

---

—10--

11.

All sampling and analytical methods to he employed during

the variance period shall

follow procedures established by

Standard Methods for the Examination of Water and Wastewater,

15th Edition and Chemistry Laboratory Manual

for Bottom

Sediments

and Elutriate Testing, March

1979.

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 certified iaboratories~

12.

By February

1,

1984, and annually thereafter for the duration

of the variance, Petitioner shall

submit to the Agency the

results of sampling under Paragraph 10, the results of any

evaluation under Paragraph

5,

and the steps taken under

Paragraph

7,

if

any,

in planning the location development

and construction of a confined disposal facility.

CERTIFICATION

I,

(We),

,

having

read and fully understanding the Order

in PCB 83—25, 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.

Board Member

J.

Theodore

Meyer

dissented.

I,

Christan

L. Moffett,

Clerk

of

the

Illinois

Pollution

Control Board hereby certify that the above Order was adopted on

the

~2

day of

~

,

1983 by a

vote of

infr

I

.

~

Christan

L.

Moffett, Clerk

Illinois Pollution Control Board

53-90