ILJI1~OIS
POLLUTION
CONTROL
BOARD
September
8,
1983
DEPARTMENT
OF
THE ARMY,
Petitioner,
V.
)
PCB
83—25
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by J,D, Dumelie):
On August 29,
1983, the Department of the Army,
Rock Island
District, Corps of Engineers
(“Army Corps”) moved for reconsider-
ation and modification of the Board~sJuly 26,
1983,
Opinion and
Order in this matter.
In that action the Board granted the Army
Corps,
subject to certain conditions,
a variance from certain
water quality standards that might be violated during potential
dredge and disposal operations on the Illinois River.
On
September
1,
1983, the Illinois Environmental Protection Agency
(“Agency”)
filed a Response to Motion for Reconsideration.
The
Army Corpse
motion for reconsideration
is granted.
The
Army Corps and Agency request two modifications to
the
July 26,
1983,
Order,
First they request that the duration of
the variance be increased
from one year to the three years
originally requested.
Second, they request the prohibition on
open water disposal be deleted.
For the reasons below these two
modifications are denied and the July
26, 1983,
action of the Board
is reaffirmed.
As reasons for extending the time period the Army Corps
urges that,
“,,.there
is
a high probability that dredging the
Illinois River may
riot be required
during
the period of the
variance,”
and “only in a dredging year will meaningful,
during—
dredging data be collected from the proposed sampling and
monitoring program”.
Thus, the one—year variance is too short to
allow development of “the information contemplated by the Board
in its order
(Mot.
pp.
1—2).
The Army Corps misinterprets the
Board’s Order,
54-29
--2—
The
Board
has
no information
in this record
concerning
the
generalized
impacts
on water quality
for each potential method
of
dredging,
each potential method of disposal, and each potential
method of
discharge
.~
A statement that water quality impacts
will
depend
on
the
characteristics
of
the dredged
material,
hydrologic
and
meteorologic
conditions,
and
the
disposal
option
(Am.
Pet.,
p.
6) does
aol:. fulfill
the
requirements
of
35
111.
Adm.
Code
t04il2i~d), (e) and ~g). Before
issuing
long—term
variances
to
water
qual
tv
standards
the
Board
must
know
what
factors
influence
water
quality
impacts
and what conditions the
Board could
reasonably
impose to reduce those impacts.
On that
basis the
July
26,
i~S3,
Orde.c required
a
report on the factors
in dredging,
disposal,
and
discharge
that affect
water quality,
and methods
of reducing such impacts
(Order,
¶
9a,
9b,
9c,
9d).
This
information
was
to
be
drawn
from
current
practices
in
the
navigable
waters
of
the
United
States,
not
just
the
Illinois
River.
Paragraph
9(f)
required
submission
of
pall
testing
results
obtained’~
for
the
Illinois
River~
if
rio
results
are
obtained,
no
information
ne~u:
he
provided~
Sufficient
information
on
water
quality
:isnpacts
of
dredging,
disposal
and
discharge
operations
elsewhere
in
the
US,
should
provide
the
Board an adequate informatior
base
for
further variance decisions unless
the Illinois River is
fundamentally
different from all
other
U.S.
waters,
If
the
Arr~y
Corps
does
not presently
know
what
factors
in
a
dredging
operation
affect
water
quality,
and how to minimize adverse impacts,
that.
information
must
be developecL
One year
is an adequate time for
preparing
such
a
report.
The
Army
Corps and Agency request
that
the
prohibition
on
open
water
disposal
(Order~¶~6)
he
deleted,
Open water disposal
was neither specifically requested nor explained in the
Amended
Petition.
There
is
no
claim
of
clerical
error, newly discovered
evidence,
fraud,
or
a
void
order
:35
Iii,
Adm.
Code
103.241.
The
best
information
available
in
the
record
indicates
each
open
water
disposal
may
result
in
the
discharge
of
137
million
gallons
of
contaminated
sediments and waters,
to
the
Illinois
River
(Am.
Pet,,
p.
5).
Absent
more
information
the
Board
cannot
approve
such
actions.
The report
under
paragraph
9
of
the
Order
provides
the best mechanism
for
acquiring
such
information,
The Army
Corps’
request
for
a 1~f
ace—to--face”
meeting
with
the
Board
is
denied.
A variance petition initiates an
adjudicatory
proceeding
35
Ill.
Adm.
Code 104.201 and
35
Ill.
Adm.
Code
Part
103.
As
the
Army
Corps
and
Agency
are
in
agreement,
oral
argument
to
the
Board
would
serve
no
useful
purpose:
A
meeting
for
argument
with
the
Board
is
riot
allowed,
*The
Board
notes
the
Army
C~~’arguments
that
the
Board
had
essentially
waived
informational
deficiencies
because
of
the
Board’s
request
that
two
specific
legal
issues
be
addressed
at
hearing.
In
a
variance
proceeding
the
burden
of
supplying
sufficient
information
is
on
the
petitioner.
The
Board
cannot
and
should
not
be
expected
to
pre—judge
a
variance
petition to determine
at
such
an
early
stage
in
the
case
all
information
which
may
he
relevant.
This
is
particularly
true
where
a
hearing
will
be
held
in
the
case.
54-30
—3—
Should
the Army Corps find the terms
and conditions of the
variance
onerous
it need not
sign
the
certification.
The
variance
petition
would
therefore be denied and its conditions
rendered
unenforceable.
Citizens Utilities ~
Control
Board,
9
Ill.
App.
3rd 158,
289
N.E.
2nd
642
(1972),
~Tntkote
Co.
v.
Pollution Control Board,
53
Ill.
App.
3
665,
368
N.E.
2nd
984,
11 Ill,
Dec.
376
(1977),
All options concerning
a
new
variance petition would still be available to the Army Corps.
Accordingly, the motion for modification
is denied.
IT IS SO ORDERED.
I, Christan
L.
Moffett, Clerk
of
the Illinois
Pollution
Control
B~ard,hereby certify
that, the above Order was adopted on
the
___
_day
of
__~~~zAL~___
,
1983
by
a
vote
of~C~~
,
*
/
~/.
~
~‘
i
(
Christan
L.
Moffet~,(~1~rk
illinois Pollution Cori~trol Board
54-31