ILLINOIS POLLUTION CONTROL BOARD
December 19,
1974
ECHO
LAKE
COMMITTEE,
Petitioner,
v.
)
PCB 74—313
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
On August
22,
1974,
the Echo Lake Committee
(Committee)
filed its Petition for Variance with the Pollution Control Board
(Board).
The Petitioner requested
a variance from Rule 203(h)
of the Water Pollution Regulations (Chapter Three) which states:
“(h) Any substance toxic to aquatic life shall not exceed one—
tenth of the 48-hour median tolerance limit
(48-hr
TLM)
for native
fish or essential fish food organisms.”
The Committee wanted to
apply a 2 1/2 percent rotenone solution to Echo Lake located in
Lake County,
Illinois, on September
6,
1974,
to eliminate the
over-population of carp and bullhead in order to improve water
clarity and the game-fishing.
On August 29,
1974,
the Board
ordered additional information to be submitted to enable us to
decide whether the Petitioner satisfied the test of arbitrary
or unreasonable hardship under Section 35 of the Environmental
Protection Act
(Act).
On September 6, 1974,
the Echo Lake Committee carried out
its fishkill without having obtained Board approval for its
action.
Petitioner went ahead because the Conservation Depart-
ment will only apply rotenone in late August through September
each year and the Committee felt it could satisfy the requirements
to enable it to obtain a variance.
It appears that the Petitioner
discussed its situation with a Board staff member before the
September
6 treatment.
The staff member gave the Petitioner no
opinion on the merits of its Petition, but did explain briefly to
the Petitioner the procedures to be followed for seeking a vari-
ance.
On September 30, 1974, the Echo Lake Committee supplied
additional information to the Board on its variance petition.
The
information indicated that:
1.
Echo Lake
is a 25 acre lake with an average depth of
4 1/2 feet.
The lake is located one mile north of Lake Zurich
in Lake County, Illinois.
2.
The fish toxicant to be applied is Pro-Noxfish
(Pinick
Chemical Co.); EPA Registration #432-171; composed of
2 1/2 percent
14—737
—4—
rotenone,
2 1/2 percent sulfoxide, and 95 percent inert material.
After application,
the final concentration of rotenone in the
lake will be 2ppm.
3.
Application of rotenone is to be done under the control
of Gary Erickson, State Fisheries biologist from the Illinois
Department of Conservation.
4.
Arrangements for fish disposal have been made with a
local disposal company.
5.
Rotenone presents various hazards to users coming in
contact with it.
It is poisonous if swallowed or absorbed through
the skin.
Contact with eyes, skin,
or clothes necessitates wash-
ing with soap and water.
Rotenone is combustible.
6.
Rotenone remains toxic for one week to one month after
application, depending upon various factors including water
alkalinity and temperature.
7.
Rotenone can be detoxified by adding chlorine or potassium
permanganate at concentrations equal to that of the rotenone in the
water.
8.
Echo Lake is not used as a water source for human or
animal consumption.
9.
No portion of the lake is publicly owned.
10.
Area residents favor treatment.
11.
No water discharges from the lake from July through the
winter.
Application in September will not produce any downstream
problem.
12.
Failure to approve the variance would result in an arbitrary
or unreasonable hardship in that the lack of clarity of the lake
directly affects the community in several ways:
“a.
The turbid water condition, which exists all year,
presents a safety hazard to the community since
rescue of a drowning person often relies on being
able to see the person under water.
“b.
The turbid water condition decreases the utilization
of the lake for swimming and boating.
“c.
The lake cannot support a healthy gamefish population
(since gamefish are sight feeders).
This has result-
ed in decreased utilization of the lake for fishing
by the community.
“d.
The lake, which should be an asset,
is now a liability,
which directly affects property values.”
The additional information supplied September 30 included a
letter dated November
8,
1973, from Gary Erickson which pointed
14
—
738
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out that the lake is in essentially the same condition as it
was in 1967.
Mr. Erickson stated that rehabilitation of the
lake was questionable because of the lake’s connection with
Lake Zurich.
Dredging 1/4 of the lake to a depth of 10 feet
must be completed before rehabilitation could be considered.
The Environmental Protection Agency
(Agency)
filed a Motion
to Dismiss on October 11, 1974.
The Agency argued that since
the Petitioner had performed the fishkill,
the Petition should
be dismissed as moot.
A Request For Order was filed by the
Agency on October 30, 1974.
In pertinent part,
it stated:
“1.
The Agency believes that Petitioner has failed to
state an arbitrary and unreasonable hardship pursuant to Rule
401(b)
of the Procedural Rules of the Board and Section 35 of
the Environmental Protection Act.
.
.
.
Thus,
its petition
should be dismissed as inadequate.
Though Petitioner claims
that the Department of Conservation will apply fish toxicants
only in late August or September, no reason has been given why
the fishkill could not have been delayed until the end of
September in the hope that
a Board decision could be reached.
The Agency further notes that there was no compelling reason for
the toxicant to be applied this year since the subject lake has
been degraded,
according to Department of Conservation records,
for seven years or more.
“2.
.
.
.
The Agency
.
.
.
believes that Petitioner’s
decision to proceed with the fishkill as planned renders this
variance petition moot.
“3.
If Petitioner had not proceeded with the toxicant
application as planned, the .Agency would be able to recommend
the grant of said variance pursuant to conditions similar to
those imposed by the Board in City of Jacksonville v. Environ-
mental Protection Agency, PCB 74-92.”
We deny the Agency’s Motion To Dismiss on the grounds of
mootness.
Since the Committee is subject to an enforcement
action following its application, we cannot say that any decision
rendered in this case would have no legal effect upon the rights
and obligations of the parties.
We grant the Agency’s other motion
(Request For Order) and
dismiss the Petition for Variance as inadequate.
First,
there
is insufficient evidence in the record to enable us to determine
the possible benefit to the lake from the application of the
toxicant.
Mr. Erickson’s letter of November 8,
1973, points out
rehabilitation difficulties because of
(we presume) possible carp
migration from Lake Zurich to Echo Lake.
Also, there is no evi-
dence in the record on whether the dredging has been carried out.
Second, we normally condition the grant of such variances on the
use of certain procedures
to protect the environment.
In City of
14
—
739
—4—
Jacksonville v. Environmental Protection Agency, PCB 74-92
(September 19, 1974), we granted the Petitioner avariance to
apply a fish toxicant to Lake Jacksonville subject to certain
conditions, including the following:
“C)
That Lake Jacksonville be closed for all primary and
secondary contact uses, including but not limited to swimming,
boating, and camping,
for the fourteen day period during and
after administration of the subject toxicant, and until
fingerling
rainbow trout or fingerling bluegill survive
48 hours exposure in
livecars;
“d)
That all necessary precautions be taken to protect cattle
and other mammals and amphibians which may use Lake Jacksonville
as a source of drinking water;
“g)
That dead fish be deposited into enclosed container-
type trucks and transported to
a sanitary landfill in the vicinity;
“h)
¶1’hat Petitioner comply with all other statements made in
its petition and accompanying reports and its amended petition re-
garding administration of the toxicant;
“i)
That Petitioner report to the Agency the results of the
subject administration of fish toxicant within thirty—five days
of the completion of the operation.”
“j)
That treatment shall be made under the direct, on—site
supervision of Fishery Biologists
of the Department of Conservation.
The City shall notify the Agency
10 days in advance of the treatment
so that they may observe the treatment if they care to.”
In Lake Patterson Fishing Club v. Environmental Protection
Agency, PCB 74—341
(November 22,
1974), we included the following
conditions
in our variance grant:
“(a)
Petitioner shall close Patterson Lake and the lake’s
surrounding land area to all primary and secondary contact uses,
including but not limited to swimming, boating, fishing, and
camping during the period of administration of the fish toxicant
and until such time as a fingerling rainbow trout or fingerling
bluegill will survive 48 hours of exposure in livecars.
“(c)
The application of the fish toxicant to Patterson Lake
shall be made under the direct, on—site supervision of
a fishery
biologist from the Illinois Department of Conservation.”
These conditions represent the usual kinds of safeguards nec-
essary to protect the public interest when a variance is granted
to apply a fish toxicant.
In the subject case,
the Petitioner
has already proceeded with its fishkill.
To grant a variance here
would mean sanctioning a fishkill without insuring the kinds of
safeguards indicated in the two similar cases indicated above.
14—740
—5—
The Board is not prepared to do this.
Since the Board has no
evidence that the quoted procedures were carried out by the Echo
Lake Committee when it conducted its September f~ishkill,we rule
that the requirements of Rule 401 of our Procedural Rules have
not been met and that, therefore, the Petition is inadequate.
Petition for Variance is dismissed for lack of adequate
information.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above Opinion and Order was adopted
on the
~
day of
_______________,
1974,
by a vote of
4/
to
~D1n~
Christan L. M~i~ett
14
—
741