P97151D.PDF

ILLINOIS POLLUTION CONTROL BOARD

July 10, 1997

FOX WATERWAY AGENCY,

)

Petitioner,

)

PCB 97-151

)

(Variance - Water)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

ROY M. HARSCH OF GARDNER, CARTON & DOUGLAS APPEARED ON BEHALF OF

PETITIONER;

MARGARET P. HOWARD OF IEPA APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by M. McFawn):

The Fox Waterway Agency (FWA) filed a petition for variance on March 3, 1997,

seeking a variance from various water effluent standards as a result of ongoing and proposed

dredging operations in the Fox Chain of Lakes area. Specifically, the FWA seeks variance

from 35 Ill. Adm. Code Section 304.124 with respect to the maximum allowable total

suspended solids (TSS); Section 304.105 with respect to the water quality standards for TSS,

phosphorus and unionized ammonia; Section 304.123 with respect to the effluent limit for

phosphorus; and Section 304.106 with respect to the existence of settleable solids and turbidity

due to dredging operations in the FWA watershed territory. The primary regulation of

concern to the FWA specifies that TSS in effluent may not exceed 15.0 milligrams per liter

(mg/L). The FWA proposes a variance to permit the effluent from its various dredging

handling and treatment operations to reach a maximum TSS of 100 mg/L. The respondent,

Illinois Environmental Protection Agency (Agency), recommends that the Board grant the

variance the FWA seeks, with but one difference. The Agency recommends that the effluent

limitation for TSS be set on a site- specific basis versus the blanket 100 mg/L limitation the

FWA seeks.

The FWA seeks variance from the applicable effluent regulations for the effluent from

(1) the Ackerman Island confined disposal site which discharges into Fox Lake, and two

proposed confined disposal sites (2) the geotube development project, to be placed initially in

Grass Lake, and (3) areas under the FWA’s jurisdiction where the FWA proposes to use for

the first time a mechanical dewatering system for dredging. The variance petition includes two

descriptions: (1) the ongoing dredging projects and dredge material handling operations

currently undertaken by the FWA at Ackerman Island, and (2) a proposed project for dredge

material handling utilizing new technology involving fabric-based geotextile tube (“geotube”)

storage. The variance petition provides no details describing the proposed mechanical

dewatering system which the FWA plans to test, but this deficiency was corrected at hearing.

The FWA requests that the variance apply to its operations in the entire area under its

jurisdiction, which includes several interconnected lakes, natural and manmade channels, and

contiguous riverways stretching from the Wisconsin border to the Village of Algonquin,

Illinois (hereinafter referred to as “Fox Chain of Lakes”). The critical issue in this variance is

the request by the FWA for a single TSS limit of 100 mg/L applicable to its discharge from

various dredging projects in the Fox Chain of Lakes. Information addressing the variance

criteria, including the geographic location of the FWA dredging activities, is set forth in the

petition and the Agency’s recommendation filed on April 4, 1997. In its recommendation, the

Agency recommended that the variance sought by the FWA be granted with two exceptions.

First, the Agency recommended that the TSS limitation for the effluent be a site-specific

limitation instead of the 100 mg/L sought by the FWA. Second, the Agency recommended

that the Board deny the variance sought concerning the mechanical dewatering project due to

lack of information in the petition. The FWA and the Agency presented additional

information at hearing, in submittals responding to a post-hearing information order issued by

the hearing officer, as well as in their post-hearing briefs.

The FWA seeks to obtain the variance for a period of five years from the date of

variance being granted. The FWA states that during that time it will perform each of the three

proposed projects gathering the information necessary to petition for permanent relief in the

form of an adjusted standard. The FWA estimates that during the first 2 ½ years of the

variance, it will conduct the necessary experiments to obtain the information necessary to

determine the adjusted standard it should seek. The FWA plans to use the remainder of the

variance’s term to petition for the adjusted standard and obtain the Agency’s support and the

Board’s decision on such petition.

The Board’s responsibility in this matter arises from the Illinois Environmental

Protection Act (Act) 415 ILCS 5/1

et seq

. (1996). The Board is charged therein with the

responsibility of granting variance from Board regulations whenever it is found that immediate

compliance with the regulations would impose an arbitrary or unreasonable hardship upon the

petitioner 415 ILCS 5/35(a). The Agency is charged with, among other things, investigating

each variance petition and making a recommendation to the Board as to the disposition of the

petition. 415 ILCS 5/27(a)(1996). The Agency is also required to appear in hearings on

variance petitions. 415 ILCS 5/4(f)(1996).

For the reasons set forth below, the Board finds that the FWA has presented adequate

proof that immediate compliance with the Board’s water pollution effluent standards from

which it seeks variance would impose an arbitrary or unreasonable hardship. Accordingly, the

Board grants the petitioner’s variance petition with respect to Sections 304.105, 304.123, and

304.106 for the entire geographic area under the jurisdiction of the FWA for effluents from its

dredging operations. The Board also grants variance from the 15 mg/L TSS limitation found

at Section 304.124. However, as a condition to this variance, the Board imposes the site-

specific TSS limits recommended by the Agency concerning the confined disposal facilities and

the geotube projects. As for the last project, the mechanical dewatering system test, the Board

will impose the two conditions the Agency recommends so that adequate data is collected to

demonstrate the impact to water quality after the test is run. The variance shall become

effective beginning on the date of this opinion and subject to the conditions set forth in the

attached order.

PROCEDURAL HISTORY

The Agency filed its recommendation in this matter on April 4, 1997. A Motion for

Extension of Time To File Response to Agency Recommendation was filed by the FWA on

April 14, 1997. The hearing officer granted the motion, and the FWA’s response to the

Agency recommendation was filed on April 21, 1997. The FWA submitted a short waiver of

the Board’s statutory decision due date, which accommodated the notice of hearing for May 6,

1997.

Pursuant to 35 Ill. Adm. Code 104.160, a hearing was held before Board hearing

officer June Edvenson on May 6, 1997, at the Lake Zurich Village Hall. Board Member

Marili McFawn and Technical Support Staff member Anand Rao were in attendance. No

members of the public were present. Several witnesses presented testimony: Karen C.

Kabbes, P.E., then-Executive Director, Fox Waterway Agency; Linda L. Huff, P.E.,

President, Huff & Huff Environmental Consultants, Inc.; Michael Hodges, Business

Development Manager, The Industrial Company, Wyoming, Inc., Denver; Bruce J. Yurdin,

Manager, Watershed Unit, Permits Section, Water Pollution Control, IEPA and Robert G.

Mosher, Supervisor, Standards & Monitoring Support Unit, Planning Section, Bureau of

Water, IEPA. The hearing officer identified no issues of witness credibility.

After hearing, the hearing officer issued a Post-Hearing Information Order and an

agreed Briefing Schedule. Both parties filed timely Responses to the Post-Hearing Information

Order, and complied with the briefing schedule. The Record of the proceeding was closed on

June 23, 1997. The FWA filed a second waiver extending the decision due date until July 25,

1997, to accommodate the briefing schedule.

STATUTORY FRAMEWORK

The Board’s jurisdiction and authority in this matter arise from the Act. The Board is

charged there with the responsibility of granting variance from Board regulations whenever it

is found, upon presentation of adequate proof, that immediate compliance with the regulations

would impose an arbitrary or unreasonable hardship upon petitioner. 415 ILCS 5/35(a). The

purpose of a variance has been elaborated upon many times by the Board and the courts. In

Monsanto Company v. Pollution Control Board, 67 Ill.2d 276, 367 N.E.2d 684, 688 (1977),

the Supreme Court, in determining whether variances can be permanent, stated that the Act’s

ultimate goal is for all polluters to be in compliance and that “[t]he variance provisions afford

some flexibility in regulating speed of compliance, but a total exemption from the statute

would free a polluter from the task of developing more effective pollution-prevention

technology”. The Board, in following Monsanto, and other subsequent cases, has stated that

“[a] further feature of a variance is that it is, by its nature a temporary reprieve from

compliance with the Board’s regulations, and compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an individual polluter.” American

River Transportation v. Illinois Environmental Protection Agency (August 24, 1995), PCB 95-

146.

SUMMARY OF PETITION AND RECOMMENDATION

Petitioner, the FWA, is a special purpose unit of local government created to maintain

and improve the Fox Waterway System from the Wisconsin state line to Algonquin, Illinois

615 ILCS 90/1

et seq

. (1996). The FWA, governed by an elected board of seven officials, is

charged, by statute, with the duty to:

…implement reasonable programs…to improve and maintain the Fox Chain of

Lakes – Fox River recreational waterway…to improve the recreational uses of the

waterway, prevent pollution and otherwise improve the quality of the waterway. 615

ILCS 90/7.1 (1996).

To fulfill this duty, the FWA has an ongoing dredging program which uses a single,

confined, state-owned disposal site on Ackerman Island. The FWA petition involves three

projects that the FWA wants to expand or implement to enhance its dredging program. Each

project is discussed individually below as presented by petitioner and as recommended by the

Agency. The environmental impacts of each project are also discussed, as are the Board’s

conclusions concerning the same.

Confined Disposal Sites

The first project presented in the petition is the continued use of the Ackerman Island

disposal site which discharges into Fox Lake. Petitioner characterizes this operation as a

confined disposal operation. The FWA currently has an Illinois EPA permit, No. 1993-EA-

3060, to operate the Ackerman Island Sediment Disposal Facility. Petition, Attachment 7.

That permit allows the FWA to place up to 22,149 cubic yards of hydraulically dredged

material from the Fox Chain of Lakes into the Ackerman Island disposal facility. Pursuant to

that permit, the FWA is required to monitor the effluent on a weekly basis for TSS,

phosphorus, ammonia nitrogen (as N), pH and temperature. Those monitoring results must be

submitted to the Agency monthly. Pursuant to the permit, the TSS in the effluent is limited to

15 mg/L, and the FWA must manage the facility so that water quality standards are

maintained.

The FWA currently removes bottom materials from the river, lakes and channels using

either a hydraulic dredge or an amphibious backhoe leased from the State. The hydraulic

dredge removes the material by essentially cutting and vacuuming the bottom of the waterway

and then pumping the resulting sediment-water mixture to a dredge containment and

dewatering site, i.e., the confined disposal site. The FWA claims that it has not used the

Ackerman Island confined disposal site since 1994 because it became filled. Prior to that time,

in 1993 and 1994, the effluent TSS from Ackerman Island averaged 42 mg/L with a range of

10 to 101 mg/L. Petition at Attachment 1. Recently, the FWA expended approximately

$200,000 to excavate the sediment accumulated there, so that it is now available for additional

disposal.

The State has recently acquired land for two other confined disposal sites: one known

as Island Lake, and the other known as Grass Lake. The capital cost of constructing the

proposed Island Lake site is $1.5 million. The FWA requests that the variance include relief

from the four effluent related water regulations for these proposed sites, as well as the

Ackerman Island site. Specifically, the FWA requests that the effluent limitation for TSS in

the effluent from the confined disposal operation be set at 100 mg/L for all three sites.

Recommendation at Attachment A; Petitioner Ex. 4.

The Agency acknowledges that the FWA dredging program is necessary and has an

overall positive environmental impact. The Agency, therefore, recommends that the Board

grant variance from Section 304.105, as it applies to un-ionized ammonia nitrogen and

phosphorus, Section 304.123(b) as it applies to phosphorus, Section 304.106 which prohibits

offensive discharges, including settleable solids, and requires that turbidity be reduced to

below obvious levels. However, the Agency recommends TSS limits different from those

requested by the FWA. The Agency recommends that the TSS limit for Ackerman Island be

set at 80 mg/L; for Island Lake at 58 mg/L; and for Grass Lake at 100 mg/L.

In support of its recommendation, the Agency relies upon the following three facts:

Background levels for TSS within the Fox Chain of Lakes are well below 100

mg/L, with levels in Grass Lake being marginally higher than the other lakes;

TSS discharged at 80 mg/L is more protective of aquatic life than TSS

discharged at 100 mg/L; and

Historical data provided by the FWA shows that effluent limits well below 80

mg/L can be achieved at the Ackerman Island confined disposal facility.

Recommendation at p.5

The Agency claims that the problem the FWA faces in achieving TSS levels in the

effluent from confined disposal sites is due to the lack of space and time to allow adequate

settling and draining. The lower the TSS limit, the more time the dredged material must settle

to achieve the applicable effluent limit. The Agency contends that if the FWA had more

confined disposal sites, there would be more space and time for adequate settling to take place.

The Geotube Project

The second project proposed in the petition is the use of geotextile tubes (geotubes)

placed in the water and filled with dredged material. The geotubes, as they are filled, will be

left in place eventually forming an area that the FWA intends to develop as a wetland. In

cooperation with the U.S. Army Corps of Engineers and the Department of Natural Resources,

the FWA desires to create some new wetland areas to replace some of those which have been

lost over the years. The FWA will use the geotube to be filled with dredged material and form

a perimeter of 10 acres which would eventually be filled with more dredged material to form

an island. Vegetation would provide permanent stabilization of the new wetland by spreading

its roots through the geotube and sediment. Petition at 6-7.

According to the FWA, Nippersink, Grass and Pistakee Lakes once contained large

areas of wetlands. Those wetlands helped trap silt and were home to fish and game birds.

Erosion due to boat, wind and water level fluctuations has caused many of the wetlands to

disappear, leaving shallow areas not generally usable for boating. The FWA intended to build

the first geotube wetland project on Nippersink Lake.

The State of Illinois has earmarked

approximately $400,000 to fund the work. Should the project prove successful, the FWA

intends to build similar wetland areas in Pistakee and Grass Lakes. Petition at 7.

The FWA presently has an Illinois EPA operating permit, No. 1996-EA-5493, which

allows the installation of two geotubes in Nippersink Lake and Pistakee Lake. Petition at

Attachment 7. According to the permit, the geotubes are approximately 30 feet in

circumference and are constructed of an outer shell of woven polyethylene liner. The geotubes

will be filled by hydraulic dredge and by mechanical excavator with a slurry pump. In the

permit, among other conditions, the FWA is required to monitor the effluent discharged from

any outlet ports in the geotubes for TSS, ammonia nitrogen, pH and temperature on a weekly

basis. The sampling results and locations are to be reported to the Agency on a monthly basis.

The geotube area is also required to be operated in such a way that satisfactory detention is

provided to maintain a TSS effluent concentration of 15 mg/L.

Based upon test results to date the FWA does not believe that it is feasible to proceed

with the geotube project under the current permit. The geotube filled with dredged material in

Pistakee Lake is approximately 30 feet in circumference and is made of an outer shell with an

interior liner. It took 14 days to fill 140 feet of tubing. The FWA figures at that rate the

7,000 foot tube needed to form the perimeter of the proposed wetland disposal area would take

nearly two years to fill—an unreasonable length of time. In addition to seeking the variance,

the FWA is experimenting with various design options. Petition at 9.

The Agency’s recommendation concerning this second project is much the same as its

Due to community opposition, the geotube will probably not be installed in Nippersink Lake.

(Petition at 8

)

recommendation concerning the confined disposal project. The Agency supports continued

dredging by the FWA and recommends relief from Section 304.105, Section 304.123(b) and

Section 304.106. The Agency also recommends variance from Section 304.124(a), but

advocates effluent limitations more stringent than the 100 mg/L the petitioner seeks. Based

primarily upon background levels of TSS, the Agency recommends that the TSS in the effluent

discharged be limited to 100 mg/L in Grass Lake; to 70 mg/L in Nippersink Lake; to 80 mg/L

in Pistakee and Fox Lakes.

Mechanical Dewatering Project

The third project presented in the petition is the proposed testing of a mechanical

dewatering system which would allow the FWA to undertake hydraulic dredging and transfer

the solids to truck and then ship the material to disposal sites other than its own Ackerman

Island. The FWA explained that this is to be a one-time test program utilizing approximately

10,000 cubic yards of dredged material. The purpose of this project is the same as confined

disposal: to concentrate the solids for use or disposal and to return the water to the Fox River

system. The purpose of the test is to determine an appropriate size for the full-scale

equipment, to develop cost information, and to determine the technical feasibility and

economic reasonableness of additional add-on controls to this mechanism. The FWA hopes

that the mechanical dewatering technology can be used in the future to reduce the costs of

future dredging projects and enable dredging of otherwise inaccessible areas. In its petition,

the FWA did not identify the proposed dredging site or the effluent limitations it seeks.

Rather, the FWA did state that the TSS levels in the effluent absent controls could be as high

as 1 gram per liter. Petition at 8-9.

Initially the Agency recommended that this request be denied due to insufficient

information in the Petition. The Agency has since revised its recommendation in favor of

variance relief from the applicable sections. (Response to Post-Hearing Information Order.)

The Agency’s favorable recommendation, however, is subject to the imposition of the

following two requirements. First, the FWA should be required to installed an impermeable

barrier such as a silt curtain prior to dredging so that the work area is isolated from the

adjoining waters of the State. Second, the FWA should not be allowed to remove the

impermeable barrier until “TSS monitoring at representative locations indicates that the post-

project water in the channel is essentially similar to the water on the lake or river side of the

barrier.” Agency Response to Post-Hearing Information Order at 3.

In its post-hearing brief, the FWA agreed with the conditions proposed by the Agency,

but expressed concern about their interpretation and language. First, the FWA was concerned

about the term “impermeable”, and requested that it be replaced with the phrase “low

permeability.” Second, the FWA was concerned about the terms “TSS monitoring” and the

phrase “essentially similar.” The FWA believes that the monitoring should consist of a visual

examination only versus laboratory analysis. Therefore, the FWA requested that the term

“essentially similar to” be replaced with “not visibly more turbid than.” The Agency is not in

agreement, especially with the second substitution that the FWA requests. In its post-hearing

brief, the Agency claimed that such an interpretation by the FWA indicates that it is not

willing to develop the water quality information which the mechanical dewatering experiment

was intended to generate to support possibly permanent relief concerning this project. The

Agency argued that if the FWA did not intend to demonstrate and provide the necessary

information, variance should not be granted for this project. Agency Brief at 9-10. In its

reply brief, the FWA did not respond to the Agency’s position about actual versus visual

monitoring for TSS levels in the “post-project water.”

ENVIRONMENTAL IMPACT

Each of the three projects proposed by the FWA is to accommodate dredging in the

Fox Chain of Lakes areas over which the FWA has jurisdiction. The FWA and the Agency

agree that the dredging is necessary and will have overall environmental benefits to the area’s

environment. Petition at; Agency Recommendation at 3. As pointed out by the FWA,

common to each of the three projects covered by the variance request is the material

discharged. The material discharged will originate from dredged material, i.e., sediment

removed from the bottoms of rivers, channels and lakes within the relevant Fox waterway

area. The FWA has no real control over the types of contaminants in the dredged materials.

However, given the non-industrial character of the area, unnatural materials should not have

significantly accumulated in the sediment, and available sediment sampling supports that

conclusion. Petition at 9 and Attachment 3.

In its operating permits issued to FWA to date, the Agency has only identified total

phosphorus, and ammonia nitrogen and TSS as contaminants of concern and only required

monitoring for these contaminants. Based upon historical sampling results, the FWA has not

been able to meet the TSS limit of 15 mg/L consistently, and historical ammonia and

phosphorus values indicate that the effluent could cause or contribute to water quality

exceedences. Petition at Attachments 1 and 4. Although no such data is available for the

proposed geotube/wetland project or the mechanical dewatering project, the FWA anticipates

similar results from the former, and absent additional controls even higher concentrations from

the testing proposed for the mechanical dewatering system. Petition at 10. In its

recommendation, the Agency concludes that under the circumstances in the Fox Chain of

Lakes waterway, the environmental benefits of the FWA proposed dredging program outweigh

the minimal environmental impact of granting the variance for phosphorus and ammonia

nitrogen for the first two projects. Recommendation at 4. The Agency expanded its favorable

recommendation for these two contaminants to the third project, the mechanical dewatering

system, during hearing and in its post-hearing brief. Transcript at 66-67 and 97-98; Agency

Brief at 2.

The Agency also agrees that the enhanced dredging program requires variance from the

TSS limit of 15 mg/L and the environmental benefits of the dredging program outweigh the

environmental detriments. However, the Agency disagrees with the FWA about the TSS

limitation necessary for the dredging to take place during the variance without threatening or

harming aquatic life on a short term basis. The Agency believes that the environmental

consequences of dredging must be mitigated. Given that the material discharged is common to

all three projects, the Agency further believes that the environmental consequence can and

must be mitigated for three projects. The Agency states that it is proposing effluent limits

based primarily upon available background TSS data as opposed to the “blanket” limit of 100

mg/L requested by the FWA in an attempt to mitigate the short term detrimental impacts

caused by the dredging operations. Recommendation at 4-5; Agency Brief at 3-4.

The FWA Seeks 100 mg/L TSS Limit

The FWA seeks a single TSS limit of 100 mg/L that would apply to its discharges from

various projects in the Fox Chain of Lakes. The FWA justifies the proposed TSS limit with the

findings of a Maryland Department of Health and Mental Hygiene study entitled “Turbidity: A

Literature Review of its Impacts on Aquatic Resources.” Petition Attachment at 6. The FWA

contends that according to the Maryland study effluent discharges containing less than 100 mg/L

TSS would not be expected to cause any harmful instream impact, regardless of the available

dilution. Petition at 15. The FWA also supports its request with a study conducted by the

Northeastern Illinois Planning Commission (NIPC) entitled “A Review of Water Quality

Regulations Pertaining to Dredging Activities”. Petition Attachment at 5.

The FWA states that, at least on an interim basis, its discharges should not be limited to

levels based upon background water quality. The FWA asserts that the methodology used by the

Agency in developing the TSS limits has a few shortcomings. Petition Brief at 6. First, the FWA

notes that the water quality data is limited and that the available data is variable. The FWA states

that the Agency data, which was taken on weekdays when there is little boat traffic, shows

significantly lower TSS levels than the data collected by the Army Corp. In this regard, the FWA

contends that heavy boat traffic is a reality in the Fox Chain of Lakes, and its impact on sediment

resuspension must be considered. Next, the FWA argues that it is unnecessary to limit the TSS

discharge levels to background unless that limit is necessary to avoid an adverse impact upon the

aquatic community. Finally, the FWA states that limiting effluent discharges to background

concentrations ignores the cost of control. The FWA contends that given the environmental

benefits of dredging, it is not reasonable to impose significant cost.

The FWA states that one of the major purposes of the variance is to develop information

necessary to support permanent relief. The FWA notes that the reliance on limited data in

developing the interim limits raises the question: should regulations be adopted to avoid any

potential adverse impact, or should the regulation be avoided until a problem is demonstrated in

order to avoid unnecessary expenditures. Petition Brief at 8. In this regard, the FWA believes

that the Agency has taken the conservative position despite some factors that favor allowing the

FWA more flexibility. According to the FWA, these factors include the following: the overall

environmental benefit associated with dredging; statutory mandates for the FWA to improve the

environmental quality of Fox Chain of Lakes; the variance represents a limited term experiment

to develop support for appropriate permanent standards; and other states provide for greater

flexibility than Illinois.

IEPA Recommends Site-Specific TSS Limits

The Agency believes that variance relief should be granted within environmentally

tolerable limits and should not be driven strictly by economics. Agency Brief at 2. The Agency

states that even though dredging has an overall environmental benefit, it can have short term

detrimental impacts which must be mitigated. In this regard, the Agency contends that site-

specific limits, rather than a single “blanket” limit for the entire Fox Chain of Lakes waterway, are

important to mitigate the detrimental effects. In light of this, the Agency has proposed site

specific TSS limits which range from 58 to 100 mg/L.

The Agency states that the recommended TSS limits are based on the ambient water

quality and the monitoring data included in the Army Corp of Engineers’ Recreational Boating

Impact Study (Petition Attachment 2) provided by the FWA. Agency Brief at 7. Further, the

Agency asserts that the manner in which it determined the TSS limits is consistent with the

recommendations of the NIPC Study (Pet. Attachment 5) provided by the FWA. As suggested by

the NIPC study, the Agency contends that it determined the TSS limits by using its best

professional judgment and by considering factors such as the background levels of TSS at each of

the sites, the continuous nature of dredging projects and the overall benefits of dredging.

With regards to the Maryland study cited by the FWA, the Agency states that study

focused on impacts of TSS on estuaries (salt water-fresh water intermingling type environments).

In this regard, the Agency notes that one of the authors of the study, Mr. Andrew Der,

specifically states that the study does not apply to fresh water lakes and that the high TSS limits

utilized in Maryland would not be a very good limit for freshwater systems. Agency Brief at 8.

Further, the Agency asserts that the Maryland study supports its recommended limits more so

than supporting the FWA’s requested limit of 100 mg/L.

The Agency’s recommendation for site-specific effluent limits is based upon three

premises. First, the background levels for TSS in the Chain of Lakes waterway are well

below 100 mg/L. Since the background levels are somewhat higher in Grass Lake, the

Agency recommends a 100 mg/L effluent limit for the projects discharging there.

Recommendation at 6. Second, the Agency argues that TSS discharged at 80 mg/L is more

protective of aquatic life than TSS discharged at 100 mg/L, citing The Maryland Turbidity

Report attached to the FWA’s petition. Recommendation at 6-9. The Agency claims that the

effluent limit of 100 mg/L for TSS appears to be the limit at which adverse impacts to aquatic

life are definitely documented in the Turbidity Report. Recommendation at 9. Third, the

Agency claims that historical data the FWA provided shows that effluent limits well below 80

mg/L can be achieved at the Ackerman Island site. Recommendation at 9, and Attachment A.

The Agency acknowledges that the FWA claimed that such limits could not be met if the

settling times were altered. However, the Agency argues that settling times should not be

decreased to a point where aquatic life is adversely impacted if the same can be reasonably

avoided. Recommendation at p.9.

Therefore, the Agency concludes that the disagreement is really premised upon cost.

Regarding the issue of cost, the Agency notes that the FWA did not provide any cost information

to determine the cost savings between meeting the limit proposed by the FWA and the limits

recommended by the Agency. Agency Brief at 5.

The Agency developed its site-specific effluent limitations by taking data from the

Recreational Boating Impact Study performed by the U.S. Army Corps of Engineers (Petition,

Attachment 2), and added available ambient water quality data (Recommendation, Attachment

B and Agency Hearing Ex.1.) The Agency questioned whether the Recreation Boating Study

is applicable to assessing the impact of dredging on the Chain of Lakes waterway. It does not

believe that it should be the sole authority for determining TSS effluent limitations. On the

other hand, the Agency recognized that using only the available ambient water quality data,

much more stringent limitations would have resulted. The Agency explained that it combined

the two data bases in order to recommend interim TSS effluent limitations that would allow the

dredging operations to take place and the overall benefits of dredging to be achieved. Agency

Brief at 4-5.

COMPLIANCE PLAN

In support of its variance request, the FWA proposed a three phased compliance plan

aimed primarily at obtaining an adjusted standard from the Board to make permanent the relief

it believes necessary to carry out its dredging operations. During phase one, the FWA intends

to investigate whether “economically reasonable compliance options exist” and to work

cooperatively with the Agency to develop the information necessary to prepare an adjusted

standard petition. In particular, the FWA intends to characterize “background” TSS levels in

the various areas it will discharge, so that such information can be used to develop the

appropriate regulatory limits. The FWA also intends to optimize the geotube filling and

treatment capabilities and to test and modify the mechanical dewatering system. The FWA

anticipates that it will need two dredging seasons to collect this information. During phase

two, the FWA will prepare and seek an adjusted standard from the Board. The FWA

anticipates that this phase will last approximately 18 months. The FWA believes that both

phases will take four years to complete. Phase three will only be implemented if the FWA

does not obtain the adjusted standard. In that case, the FWA agrees that it will either cease

dredging operations or arrange for disposal of dredged materials in compliance with the law.

The FWA requests an additional year to implement phase three in the event the adjusted

standard is denied. In total, the FWA requests a five year variance. Petition at 10-11.

The Agency recommends that FWA be granted a five year variance with a condition

that the FWA be required to submit a petition for an adjusted standard to the Board within 30

months of the date the variance is granted. Recommendation at 11.

ARBITRARY OR UNREASONABLE HARDSHIP

The FWA states that denial of its variance petition would pose an arbitrary or

unreasonable hardship because it would be unable to proceed in an efficient manner with

dredging activities designed, in the long term, to assure that the waters of the watershed under

its jurisdiction are of a high environmental quality. Specifically, petitioner claims that the only

treatment options are to build a wastewater treatment facility or to transport the dredged

material to an off-site facility. Petition at 17-19. The FWA claims that both options are

prohibitively expensive. The FWA relies heavily upon its belief, and the Agency’s, that the

environmental benefits gained by the dredging operations outweigh the environmental

detriments posed by such operations. As stated at the outset, variance will be granted from the

necessary, applicable regulations so that the FWA can carry out the described dredging

projects. We note that the FWA does not specifically address in its petition how site-specific

TSS effluent limits would impose an arbitrary or unreasonable hardship.

CONSISTENCY WITH FEDERAL LAW

The FWA states that it is unaware of any federal laws which would preclude the

granting of the requested relief. Petition at 20. The Agency states that there are no federal

laws which would preclude the grant of variance. Recommendation at 11. The Board accepts

the representations by both petitioner and Agency.

ANALYSIS

Since both the FWA and the Agency agree that a variance from the TSS effluent standard

of 15 mg/L (Section 304.124) is necessary for implementation of the dredging program, the issue

that must be resolved concerns at what level the TSS limit must be set for the discharges from the

FWA dredging activities in the Chain of Lakes. The following table summarizes the relief

requested by the FWA pertaining to TSS, and the TSS limits recommended by the Agency for the

various dredging locations:

Project

Site

TSS Limitations (mg/L)

Section 304.124

FWA’s Request

Agency’s

Recommendation

Confined

Disposal

Ackerman Island

(Fox Lake)

100

R15 (Fox River)

100

L10 (Grass Lake)

100

Geotubes

Grass Lake

100

Fox Lake

100

Nippersink Lake

100

Pistakee Lake

100

The FWA has proposed a single “blanket” effluent TSS limit for each of its project, while

the Agency has recommended site-specific effluent limits. In order to determine the appropriate

effluent TSS limits we need to address three issues: (i) whether the TSS limit is protective of the

aquatic life; (ii) whether it is technically feasible to comply with the TSS limit; and (iii) whether

the additional cost, if any, associated with complying with the TSS limit is reasonable. These

issues are discussed below.

Protection of Aquatic Life

The FWA correctly notes that the Board has not adopted a water quality standard for

TSS. However, the Board has adopted an effluent TSS standard of 15 mg/L at Section 304.124

that applies to nondeoxygenating waste effluents. In adopting this standard, the Board recognized

that it is necessary to control the level of suspended solids to prevent excessive turbidity and

harmful bottom deposits for the protection of aquatic life. Turbidity is known to affect certain

finfish and shellfish resources, and also affect depths to which light may penetrate and initiate

photosynthetic activity in water. Petition, Attachment 6 at 1. Hence reduction of turbidity is an

important goal in water quality protection. Since TSS is one of the main factors affecting

turbidity, control of effluent TSS has a direct bearing on aquatic life protection.

In support of its request, the FWA provided two studies (Maryland’s Turbidity Report and

NIPC) concerning the issue of TSS and aquatic life protection. While the Maryland study was

primarily conducted to evaluate the impact of turbidity on estuaries, the findings of the study

provide some information concerning the issue of aquatic life protection. The study concludes

that the preferred range of turbidity for fisheries management is 25 to 80 mg/L suspended solids.

Petition Attachment 6 at 10. NIPC performed a review of the current Illinois water quality

regulations pertaining to dredging activities. In particular, the NIPC study focused on the

appropriateness of the current TSS effluent standard of 15 mg/L applied to discharges from

dredging activities. The study recommends a number of alternative approaches to address water

quality issues associated with dredging activities that include: (i) modifying the effluent TSS

standards in the range of 30 to 100 mg/L; (ii) assessing the appropriateness of turbidity-based

effluent standards; and (iii) expanding IEPA’s ability to employ best professional judgment in

permitting decision for dredging activities.

The information in the record suggest that concentration of suspended solids less than 25

mg/L does not have any harmful effects on fisheries, and it should be possible to maintain good or

moderate fisheries in waters that normally contains 25 to 100 mg/L. From both studies it appears

that adverse impacts may result above a TSS level of 100 mg/L. The water quality data

pertaining to the Fox Chain of Lakes waterway indicate that the ambient TSS levels in all the four

lakes (Grass, Fox, Nippersink and Pistakee) and Fox River are within 100 mg/L. In light of this,

the effluent TSS limits should be set at levels at which the existing water quality (TSS) is not

significantly altered. In this regard, the TSS limits recommended by the Agency ensures that the

existing water quality is maintained in the waterway, while the single TSS limit proposed by the

FWA may alter the existing water quality. Whether or not such alteration is significant depends

upon a number of factors such as the discharge flow rate, TSS concentration, flow rate of

receiving water body, etc. These factors can be controlled, monitored and studied during the term

of the variance.

Technical Feasibility

The FWA requests relief from discharges from two types of sites: (i) confined disposal

sites; and (ii) geotube sites. The confined disposal facilities essential function as settling basins

used for draining the dredge material. The effluent monitoring data from the existing confined

disposal site at Ackerman Island (Fox Lake) indicate that TSS levels during a 12-month period

ranged from 10 - 101 mg/L. Pet. Attachment at 1. Out of 21 data points only 3 values exceeded

a TSS level of 80 mg/L. In light of this it is reasonable to expect the confined disposal facility to

meet the Agency recommended TSS level of 80 mg/L with minimum operational changes. With

regard to the planned confined disposal facilities discharging to Fox River and Grass Lake, the

facilities could be designed to comply with the applicable effluent TSS limits.

Regarding the Geotubes, Ms. Karen Kabbes of the FWA stated that the tubes are designed

to meet 15 mg/L TSS. Transcript at 100. However, Ms. Kabbes said that the problem they faced

was to do with filling the tubes. She stated that it was very inefficient and costly since the liners

become clogged very quickly with sediments allowing very little water to flow through the tube

liner. Transcript at 69. Ms. Kabbes stated that the proposed TSS limit of 100 mg/L would allow

the FWA to fill the tubes more effectively with lesser cost by relining the tube to make it more

efficient. These statements suggest that geotubes could be constructed to comply with TSS limits

of 70 or 80 mg/L instead of 100 mg/L.

Economic Reasonableness

The record does not contain economic information to draw any conclusions as to what

would be the incremental cost of complying with the TSS limits recommended by the Agency

instead of the TSS level requested by the FWA.

CONCLUSION

Based upon the record before us, the Board finds that to require compliance with the

regulations at issue would impose arbitrary or unreasonable hardship on the FWA. Both

petitioner and the Agency agree that the benefits of dredging outweigh the short term

environmental impacts. We agree that based upon the information in the record, the variance

from Section 304.105 (ammonia nitrogen/unionized ammonia and phosphorus); Section

304.106 (solids and turbidity); Section 304.123(b) (phosphorus); and Section 304.124 (TSS) is

warranted. This variance will allow the FWA to undertake the three projects it plans to

efficiently dredge in the Fox Chain of Lakes and thereafter treat and dispose of the dredged

material. It will also enable the FWA to be in compliance during the term of the variance at

the existing confined disposal facility at Ackerman Island.

We agree with the parties that the issue outstanding, once variance is deemed

warranted, is the appropriate level of TSS in the effluent from the confined disposal facilities

and the geotubes. We also agree with the Agency that the burden is on the FWA in a variance

proceeding to justify to the Board the relief it requires on an interim basis, not just the need for

the relief. As stated before, the parties disagree about the extent of the relief, not the need for

variance. Both the petitioner and the Agency characterize the contested issue in terms of cost.

The FWA believes the “regulation” should be avoided until a problem is demonstrated in

order to avoid unnecessary expenditures. The Agency claims that the FWA has not met its

burden because it has not provided information about the cost of complying with the blanket

TSS effluent limit versus the site-specific limits proposed by the Agency. The FWA

acknowledges that it has not provided any such data.

We have examined the evidence provided by both the FWA and the Agency, not just in

support of the variance, but also so that we can determine the appropriate TSS effluent

limitation to substitute for the 15 mg/L found at Section 304.124. We find that the record

contains a great deal of information about the need for variance from the 15 mg/L effluent

limitation, but only minimal support for substituting it with the 100 mg/L TSS effluent limit

which the FWA desires. However, the evidence from Ackerman Island supports the TSS

effluent limitation IEPA recommends for confined disposal facilities. The FWA has not

provided any evidence that the confined disposal facilities or the geotube/wetland facilities

cannot be designed to meet the site-specific effluent limits proposed by the Agency. The FWA

also has not provided any evidence about the cost of so designing or operating the existing or

proposed facilities to meet either the 100 mg/L limit or those recommended by the Agency.

On the other hand, the Agency has demonstrated that the evidence supports the site-

specific effluent limits it recommends. The evidence provided by the FWA shows that the

Ackerman Island facility can consistently meet the recommended effluent limit of 80 mg/L.

This also demonstrates that other such confined disposal facilities can be designed to meet the

recommended effluent limits. There is nothing in the record that suggests that the geotubes

cannot be designed to meet the site-specific effluent limits versus the 100 mg/L limitation.

Furthermore, the effluent limits recommended by the Agency are premised upon

environmental conditions and consequences. The studies presented by the FWA indicate that

100 mg/L is the upper end of the range where TSS affects aquatic life. Yet, the FWA has

provided no evidence that it can only achieve this upper limit. For these reasons, we will

condition the variance from Section 304.124 with the site-specific effluent limitations

recommended by the Agency.

We note that we are granting this petition although the compliance plan is not ultimate

compliance with the existing regulations, but rather the FWA plans to seek an adjusted

standard. To do so, the FWA has committed to generate, collect and study the information

necessary to support permanent relief in the form of an adjusted standard. We believe that the

TSS effluent limitations imposed today as conditions to the variance will promote dredging

operations by the FWA over the course of the variance so that information gathered consists of

data that will fully demonstrate the most appropriate permanent TSS effluent limits. In that

way, the FWA will be able not only to continue its dredging operations, but also to fulfill its

other statutory obligations to prevent pollution and otherwise improve the quality of the Fox

Chain of Lakes waterway.

ORDER

Variance is granted from 35 Ill. Adm. Code 304.105 as it applies to un-ionized

ammonia nitrogen and phosphorus.

Variance is granted from 35 Ill. Adm. Code 304.106 as it applies to solids and

turbidity and 304.123(b) as it applies to phosphorus.

Variance is granted variance from 35 Ill. Adm. Code 304.124 which prohibits

the concentration of TSS in an effluent to exceed 15 mg/L.

During the term of this variance, the TSS limit (monthly average) for the

effluent from discharges from the FWA dredging activities in the Chain of

Lakes is as follows:

Project

Site

TSS Limitations

(mg/L)

Confined Disposal

Ackerman Island

(Fox Lake)

R15 (Fox River)

L10 (Grass Lake)

100

Geotubes

Grass Lake

100

Fox Lake

Nippersink Lake

Pistakee Lake

No numerical effluent limit is applied to the testing by the FWA of the

mechanical dewatering system. However, prior to dredging with that system,

the FWA shall:

install an impermeable barrier, e.g. a silt curtain, which completely

crosses the mouth of the channel to be dredged so that the work area is

isolated from the adjoining waters of the State, i.e., the Fox River or the

Chain of Lakes; and

not remove the barrier until monitoring for TSS at representative

locations inside the channel that the water is at levels comparable to the

TSS levels in the adjoining waters of the State.

The term of this variance is for five years commencing on the date of this order

or until an adjusted standard is granted, whichever occurs first.

IT IS SO ORDERED.

Board Member Kathleen M. Hennessey abstained.

If the Fox Waterway Agency chooses to accept this variance subject to the above order,

within forty-five days of the granting of the variance, Fox Waterway Agency must execute and

forward the attached certificate of acceptance and agreement to:

Margaret P. Howard

Illinois Environmental Protection Agency

Division of Legal Counsel

2200 Churchill Road

Post Office Box 19276

Springfield, Illinois 62794-9276

Once executed and received, that certificate of acceptance and agreement shall bind Fox

Waterway Agency to all terms and conditions of the granted variance. The 45-day period shall

be held in abeyance during any period that this matter is appealed. Failure to execute and

forward the certificate within 45 days renders this variance void. The form of the certificate is

as follows:

CERTIFICATION

I (We),__________________________________________________, hereby accept and

agree to be bound by all the terms of the Order of the Pollution Control Board in PCB

97-151, July 10, 1997.

__________________________________

Petitioner

__________________________________

Authorized Agent

__________________________________

Title

__________________________________

Date

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of

service of this order. Illinois Supreme Court Rule 335 establishes such filing requirements.

See 145 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the 10th day of July 1997, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board