ILLINOIS POLLUTION CONTROL BOARD
October 16, ~~75
HAWTHORNE
LODGE,
INC.
Petitioner,
)
V.
)
PCB 75—297
ENVIRONMENTAL PROTECTION
AGENCY,
)
Respondent.
OPINION
AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
Petitioner in this case seeks a Variance to allow
the
construction and operation of a sewer extension
for its
proposed nursing home facility in Pana,
Illinois.
Hawthorne
Lodge,
Inc.
(Hawthorne)
filed
its Variance
Petition
with
the Board on July 29, 1975,
specifically
seeking Variances from Sections 12(b)
and 39(a) of the
Environmental Protection Act
(Act)
and from Rule 962(a)
of
Chapter
3:
Water Pollution,
of the Pollution Control
Board
(Board)
Rules and Regulations.
The Environmental
Protection Agency
(Agency)
filed its Recommendation on
August
27,
1975.
No hearing was held in this matter.
THE PROPOSED
FACILITY
Hawthorne
is
a Missouri corporation, licensed to
operate
in
Illinois,
engaged
in
the
business of owning
and
operating
nursing home
facilities,
several
of
which
are
located
in
Illinois,
On
September 17,
1974,
Hawthorne
purchased
the
operations,
(but
not
the
physical
plant)
,
of
the
existing
DePaepe—Ashcroft
facility
knowing
that
it
did
not
meet
the
Illinois
Department
of Public
Health
(Public
Health)
minimum
construction standards for intermediate care nursing
facilities.
The DePaepe-Ashcroft facility was purchased
as part of Hawthorne~splan to replace it with a new,
larger facility.
On September
25,
1974, Hawthorne
executed an option to
purchase other
property
in
Pana
for the construction of such a
new
facility.
Hawthorne
now plans
to construct a 123-bed intermediate care
nursing home
on the optioned property, which it hopes
to
have ready for operation and occupancy on March
3.,
1977.
19—91
—2—
On June
12,
1975,
Hawthorne submitted to
the Agency a
permit application for a sewer extension of 450 feet,
to
connect the proposed facility to the city of Pana sewer
system.
Hawthorne estimated that with full occupancy
(123
persons) and
75 employees,
the projected facility would
yield a domestic sewage flow of approximately 14,550 gallons
per day
(qpd); Hawthorne estimated a population equivalent
(PE)
of
146.
PRESENT
VIOLATIONS AT
PANA SEWAGE TREATMENT PLANT
The
Agency denied Hawthorne~spermit application in a
letter
dated June
17,
1975.
The Agency cited Rule 962 of
our
water
pollution regulations, and stated that
it could
not grant Hawthorn&s
permit because of the additional
load
which the proposed nursing home would place on the city of
Pana1s sewage treatment plant
(STP).
The Agency noted that
Pan&s
STP was designed to receive and treat 0.6 million
gallons per day
(MGD)
,
with an organic PE of 8,530.
The
Pana STP has an average flow of
.6134 MGD;
its organic
loading is 10,641
PE.
In addition to the overloading noted above,
the Agency~s
Recommendation states that bypassing of raw sewage occurs on
a
near
daily
basis at the Pana STP.
The Agency~sfield
personnel
report that the entire load on the Pana STP cannot
be
treated without flooding the clarifiers
at the plant.
Particularly
large amounts of bypassing occur during periods
of
heavy rain, due to combined sewers tributary to the
plant.
The Pane STP discharges
to Coal Creek, which has a
seven
day,
ten year
low flow of 0.43 cfs
(due to the plant
effluent).
Coal Creek is tributary to Becks Creek,
an
intermittent
stream,
and then to the Kaskaskia River.
In a
1970 b:~c1oqica1survey,
no organisms were found one mile
downstream
from the STP discharge;
sewage mold and slime
were seen
in
the stream,
The Agency characterized the
stream at that point as “grossly polluted,”
Five miles
downstream from the plant, the stream was classified as
~serni—poiluted.”
The Agency also states that operating
conditions
at the Pana STP have not improved since the 1970
survey.
The Agency has not, however, received any complaints
regarding the STP or Coal Creek during at least the last
five years.
19
—
92
—3—
The city of Pana was certified for a step
I grant
by
the Agency on March 17,
1975,
as part of its plans
to construct
a new or modified treatment plant by
December,
1977,
if Pane receives step
I,
step II and
step III approval for its planned STP facility,
it should
be able to achieve
an effluent limitation of
10 mg/l BOD
and 12 mg/i
SS.
HARDSHIP
The individual hardship claimed by Petitioner is based
on its expenditures to date
in planning for the new nursing
home facility.
Hawthorne states that it was not aware of
problems at the Pana STP when
it
began planning the new
facility,
or when it purchased the operations of the
existing DePaepe—Ashcroft Nursing Home.
Hawthorne
states
that
it has spent to date a total of $72,659.90, both in
planning
the
proposed facility and in obtaining approval
from various state and local regulatory bodies.
Hawthorne
states that all these expenditures were made while
it
believed in good faith it would be able
to connect the
proposed facility to the Pana sewer system.
Hawthorne feels it has no feasible alternative method
of disposing of the sanitary wastes generated by the pro-
posed nursing facility.
After receiving the Agency~spermit
denial letter, Hawthorne engaged engineering consultants
to
perform percolation tests
on its optioned property
in
Pana,
Those
tests, made on June
24 and 25,
1975,
indicate
that
the soil on the optioned property is not suitable for
the
construction of a septic field to serve the proposed
nursing home,
(Ex.Ej.
The Board in this case is also faced with the issue
of public hardship.
The
old
DePaepe-Ashcroft Nursing
Home operated by Petitioner
is licensed by Public Health
only upon the condition that the new facility will be
constructed,
Thus,
whether or not the new facility is
buslt,
the old 67—bed DePaepe—Ashcroft home will lose its
certification from Public Health,
and will be forced
to
close.
Even with
that home providing
67 beds,
the record
in this matter indicates that there
is a serious need
for
additional intermediate care nursing beds in t~he
Pane area.
19— 93
—4-,
Figures obtained by the Agency from Public Health
verify the problem; besides the old D~Paepe-Ashcroft
home,
there is one other nursing home in Pana, which has a 97.8
occupancy rate. The three nearest facilities outside of
Pana,
(all some distance from the city), have occupancy
rates exceeding 90.
One of Petititioner’s exhibits,
(Ex.M),
indicates that many patients are unable to receive nursing
home care, and must be kept in hospitals at increased expense
to either the individual or the government.
It seems clear that a failure to grant this Variance
would work a hardship on the public in the area of Pana.
Loss of certification at the old DePaepe-Ashcroft home,
which will happen if Petitioner is not allowed to construct
its proposed facility, will exacerbate an already serious
nursing bed shortage.
DISCUSSION
Both Hawthorne and the city of Pana claim that the
additional load on the Pana
STP
will be minimal. First, many
of the patients at Petitioner’s proposed nursing home will
come from the present DePaepe-Ashcroft Home, which is
inadequate and will be closed.
Second, the city of Pana has
recently closed an old swimming pool, and opened a
new
one,
reducing loads on the Pana Sfl
from
approximately 16 million
gallons to roughly 8 million gallons over the sununer season.
Third, census figures show that the population of the city
of Pana, and therefore the PE load on its STP, have been
dropping.
In addition, it appears that any additional load which
the new nursing home might place on the Pana
STP
would last
only a short while.
The Agency Recommendation points out
that occupancy at tk~enew nursing home is scheduled for
March, 1977, and it is projected that Sfl improvements will
be completed in December,
1977.
Balancing these factors, we feel that the Variance here
has been justified, and the Petitioner has met its burden of
proof.
The situation here is unlike prior cases, where the
Board has had to weigh the likelihood of sewer backups
during wet weather; there is no indication here of hydau—
lically overloaded sewers, despite Pana’s combined sewer
system See, First Trust and Savings Bank of Taylorville v.
EPA, PCB 74—448,
(March 13, 1975).
19- 94
—5—
Further, this Variance would be in keeping with prior
cases decided by the Board.
See, Brethren Borne of Girard v.
EPA, PCB 75-193
(July 24, 1975); see also, Sandwich Conmiunity
lEft
Schools, Diet. No.
430 v. EPA, PCB 74~’428(April 4, 19Th).
In similar
and
analogous situations, the
Board
has found
that ccnimunity hardship weighs heavily in the consideration
of variances.
We feel here that the Petitioner’s financial
hardship, public hardship in the
form
of a substantial need
for additional nursing home beds in the Pana area,
and
the
limited amount and duration of
any
addjtional load on the
Pana STP outweigh the possible environmental harm which
may
be
caused
by
the
addition
of
further
loading
on
the
Pana
SW.
THE
VARIANCE
Petitioner has requested Variances from Sections 12(b)
and 39(a) of the Act,
as well as a Variance from Rule 962(a)
of our Water Pollution Regulations.
We feel that the grant
of a Variance from Rule 962 (a) will provide Petitioner
sufficient relief, and that additional Variances from
Sections 12(b) and 39(a) of the Act will not be needed.
The pleadings in this case do not address the problem
of possible future disapproval or deferral of Pana’s planned
STP upgrading.
The pleadings do note that the Agency’s
certification of Pana’s step I grant has not yet been
approved by the United States Environmental Protection
Agency.
For that reason, we shall require that if, within
one year,
a step II grant has not been approved for Pana’s
STP, Petitioner must submit to the Agency plans for a holding
tank to decrease the load on the Pana STP during periods of
heavy inflow.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
IT
IS
THE
ORDER
OF
THE
ILLINOIS POLLUTION CONTROL BOARD
THAT
Petitioner,
Hawthorne
Lodge,
Inc.,
be
granted
a
Variance
from
Rule
962(a)
of thapter 3: Water Pollution, of the
Pollution Control Board Regulations, subject to the following
conditions:
19—95
—6—
1.
Petitioner shall,
after
one year,
if step II grant
approval for the upgrading or
replacement
of the City of
Pana sewage treatment plant has not been granted, submit to
the
Environmental Protection Agency plans for a holding
tank,
in
a form acceptable to the Agency,
to decrease loads
on the
City
of Pana sewage treatment plant during periods of
heavy flow.
2,
Petitioner shall, within 30 days of the date of
this Order,
submit to the
Environmental Protection Agency,
attn: Manager,
Variance Section,
2200 Churchill Road,
Springfield,
Illinois 62706 and to this Board,
a Certificate
of
Acceptance in the following form:
I,
(We), _______________________,
having read
the Order of the Illinois Pollution Control Board
in
Case No, PCB 75-297, understand
and
accept said
Order, realizing that such acceptance renders all
terms and conditions thereto binding and enforceable.
SIGNED
TITLE
DATE
I,
Christan
L. Moffett,
Clerk of the Illinois Pollution
Control Board,
hereby certify
the above
Opinion and Order
were
adopted on the
/6~’~’
day of
~
,
1975,
by a vote of
3~
Mr.
Young abstained.
~tanL~Moffelerk
Illinois Pollution~t~ntrolBoard
19—96