ILLINOIS POLLUTION CONTROL BOARD

May 6, 1976

LAND AMERICA CORPORATION,

)

Petitioner,

v.

)

PCB 75—426

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

Mr. Samuel T. Lawton, Jr., Attorney, appeared for Petitioner;

Mr. John Bernbom, Attorney, appeared for Respondent;

Mr. James K. Young, Attorney, appeared for Intervenor Village of

Lombard;

Mr. Michael A. Benedetto, Jr., Attorney, appeared for Intervenor

People of the State of Illinois.

OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin):

This matter is before the Board on a Petition for Variance

filed October 31, 1975 by Petitioner Land America Corporation (Land

America), seeking Variances from Rules 958(b) and 962 of Chapter 3:

Water Pollution, of the Pollution Control Board Rules and Regulations,

for the construction and operation of a sanitary sewer connection

to serve a proposed 282-bed nursing home facility to be located in

the Village of Lombard.

The Village of Lombard filed a Motion for Leave to Intervene

in the matter on November 17, 1975 and, in addition, filed a formal

objection to the requested Variance on November 20, 1975. The

Attorney General, for the People of the State of Illinois, filed a

Motion for Leave to Intervene on November 18, 1975. The Agencyvs

Recommendation was filed on December 10, 1975. A hearing was held

on February 20, 1976 in Hinsdale, Illinois, at which all of the

above parties were represented, and additional testimony was received

from numerous private citizens opposed to the grant of the Variance.

Following the hearing the parties filed extensive briefs and other

documents, and various individuals filed additional materials

objecting to the Variance.

Land America is the contract purchaser of a 1.4 acre parcel of

real estate located at Lincoln Avenue and St. Charles Road near

downtown Lombard, Illinois, where i~proposes to develop and operate

a four-story, 282-bed nursing home. The Village, on April 4, 1974,

passed an Ordinance providing zoning reclassification and a special

use permit for the nursing home. Land America also has a Certificate

of Need from the Illinois Department of Public Health with regard to

the proposed nursing home. Before it can obtain financing for the

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nursing home project, however, Land America must obtain from the

Agency the relevant construction and operating permits for the

sanitary sewer connection needed to serve the project. This it

has been unable to do, and for this reason the Variance is sought.

All parties agree that the site is presently served by a 54-inch

combined sanitary and storm sewer, which is tributary to the Village

of Lombard North Sewage Treatment Plant (STP). Nor is there any

argument on the fact that this sewer is totally inadequate for its

present load, much less any additional load. Throughout the service

area of the existing 54—inch combined sewer, residences are constantly

subject to severe backup and flooding problems.

Much

of the record

is devoted to testimony by individual citizens demonstrating the

extent of the present problems in the area, (e.g., R. 15—87).

However, the Village of Lombard is presently undertaking an

extensive sewer separation project in the area served by the present

54-inch combined sewer, and in areas tributary to that sewer, also

presently served by combined sewers leading to Lombard’s North STP.

The essence of Petitioner’s claim here is that this separation project

will alleviate the present backup and flooding problems, relieve

overloading at the Lombard North STP, and provide the basis for a

Board finding that a Variance is warranted.

The actual effect of Lombard’s sewer separation program occupied

the majority of the record in this case.

Opposition to the Variance by the People and Lombard itself

requires that we examine in detail the likely effectiveness of that

sewer separation program, alleged problems at the Lombard North STP

and in the DuPage River, and the consequent effects of the proposed

nursing home. Agency opposition to Land America’s Petition was more

specific, and of a legal nature, and will be discussed below.

SEWER SEPARATION PROGRAM

Lombard’s sewer separation program presently consists of four

segments (A, B, C and D). Parts A, B and C consist of storm sewer

construction, (Pet. ‘s Composite Ex. 2); Part D is a storm water

pumping station at the East Branch of the DuPage River, (R. 91).

These projects constitute phase I, costing approximately $3.5 million

of a $13 million sewer improvement program. The goals of the program

are to reduce the hydraulic load on the Sewage Treatment Plant,

separate the sanitary and storm flows, and to prevent backup and

flooding in the affected areas,

CR.

98-99).

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At the time of the hearing, these projects had been largely

completed. Parts A, B and C were scheduled to be essentially

completed by Spring, 1976; Part D, the pumping station, is scheduled

under contract for completion in mid-September, 1976, (R. 104-108).

It is not clear, however, exactly how much separation will be accom-

plished. One witness stated that by the time Part D is completed,

all but 5 per cent of the storm water presently entering the 54-inch

combined Grove Street sewer will be diverted to the new storm sewer,

(R. 107). Another witness, however, stated that only about 60 per

cent of the storm water would be removed from the 54—inch combined

sewer now servicing the proposed nursing home site, CR. 264)

.

The

later witness, Lombard’s public works director, even stated that it

would be necessary to leave some storm water inflows to the 54—inch

combined sewer open, because of that sewer’s very slight gradient,

(id). His testimony and that of the supervising consulting engineer

on the project were contradictory in this regard, CR. 107).

Both witnesses agreed, however, that the sewer separation

project would largely alleviate backup and flooding in the areas

downstream of the proposed nursing home site, and presently tributary

to the combined Grove Street sewer, (R. 106, 110, 265—66)

EFFECTS OF THE PROPOSED FACILITY

Land America’s Petition claims that its proposed nursing home

would generate a sewage flow of 42,300 gallons per day, based on

150 gallons per day per bed. The Environmental Protection Agency’s

Recommendation, however, estimated the total flow from the proposed

nursing home at less than 20,000 gallons per day, showing the basis

of the estimate as “data from similar nursing home facilities.”

That flow would be discharged into an existing 12—inch combined

sewer which is tributary to the 54—inch combined sewer discussed

above. That 12—inch combined sewer is also a part of the sewer

separation program described above.

It was estimated,

CR.

154), that the 54—inch sewer has a capacity

of 18 to 20 million gallons per day, with no backups or flooding.

It was also estimated that, after the sewer separation program

described above has been completed, the 54—inch sewer should have

an average dry weather flow of 1.7 million gallons per day, (Id).

We agree with the Petitioner that, based on these figures and

the testimony on the effectiveness of the storm sewer separation

program, the flow from the proposed nursing home will probably not

contribute to or cause any flooding or backup of sewage into base-

ments. As a further guarantee of that finding, Land America offered

in its Petition and in its Brief to install at the proposed nursing

home a holding tank with 84,600 gallons capacity. Using Land America’s

figures, this would provide two days storage capacity; using the

Agency’s figures, this would provide in excess of four days capacity.

Thus, even if the storm sewer separation program is not totally

effective, any effect on backups or flooding from the nursing home

would be minimal or non-existent.

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Turning then to the effect of the proposed nursing home on the

Lombard North STP, we also find that the effect would be minimal.

First, completion of the sewer separation program should considerably

alleviate hydraulic overloads at the North STP during storm periods.

Second, Petitioner has committed itself to construct the holding

tank mentioned above, which will be designed such that all sewacje

flows from the nursing home will, during dry weather, be discharged

to the plant during off-peak hours; during wet weather, the tank

will hold the nursing home’s sewage for two to four days, depending

on the figures used for sewage generation. We can reasonably expect

under these circumstances that the sewage treatment plant will achieve,

for the nursing home’s effluent, approximately 90 per cent treatment,

such as is now being generally achieved,

CR.

155). On the record

before us, the organic loading on the plant is not a significant

issue, and will not be materially affected, (R. 137—140; 142; 146;

Rec. pp. 4-5).

Effects on the East Branch of the DuPage River should also be

minimal. Part D of the sewer separation program will include retention

basins along the River which should provide some relief for the River,

(R. 103, 119).

Since it will be at least two years until the proposed nursing

home will be completed, and approximately six months until the entire

sewer separation program will be completed, we find that the evidence

shows that the proposed nursing home will have little, if any, detri-

mental effect on downstream properties tributary to the 54—inch com-

bined sewer, the Lombard North STP, or the East Branch of the DuPage

River.

HARDSHIP

Petitioner’s claim of hardship here is twofold. First, it claims

that it will be irreparably harmed financially if it is unable to

obtain the necessary permits, because the financing needed for the

project will be unavailable. Should the financing be unavailable,

Petitioner’s Vice President testified that it would be unable to

sustain the $100.00 per day burden of holding the project in abeyance,

(R. 189—211, 229—233). In addition, it appears that federal financing

which is now available may not be available at all after mid-1976.

Petitioner showed that the company’s entire expenditure to date,

approximately $170,000.00, could be forfeited.

Secondly, Petitioner pleads as hardship the need for its proposed

nursing home. This issue was not seriously contested by the other

parties, and was proved principally through the Illinois Department

of Public Health’s issuance of the requisite Certificate of Need.

All parties cited us to prior cases in which the Board found special

hardship in the case of proposed nursing homes.

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Only the Attorney General seriously questioned the claimed

hardship. He claimed that: 1) Petitioner’s vice president’s opinion

as to the possibility of termination of the project was no more than

that

--

merely opinion; 2) that the hardship is to be distinguished

here because construction of the home has not begun; 3) that the

prior cases of “nursing borne hardship” to the public can be distin-

guished; and 4) the hardship was self-imposed. We are persuaded by

none of these arguments. The Attorney General offered no concrete

evidence to counter Petitioner’s business judgement that the invest-

ment to date would be lost. Petitioner’s Ex. 11, as well as testimony

cited above by Land America’s vice president, convince us that the

hardship here was not self-imposed, in that Petitioner reasonably

relied on the sewer separation program as changing its situation.

The factual distinctions between this and prior cases cited by the

Attorney General are not of sufficient importance to affect our

decision.

Based on these facts, we find that the Petitioner has indeed

shown that it is entitled to a Variance from Rule 962. Balancing

the small likelihood of environmental harm against the strong hard-

ship shown by Petitioner, to both itself and the public, such a

Variance is clearly warranted.

Having decided that a Variance from Rule 962 is warranted, we

must turn to the Agency’s argument that the same is not true of a

Variance from Rule 958(b). The Agency’s brief corre~Ty notes that

it is not Petitioner but the Village of Lombard which would be held

liable for violations of the Act or our Regulations, possibly

contributed to by sewage flows from the proposed nursing home.

In addition to arguing the possibility that a grant of Variance

from Rule 958(b) might impose liability for violations upon Lombard,

the Agency argues that such a grant would be an interference with

a local governmental function, The Agency states that it cannot

support the grant of a Variance from Rule 958(b) when the elected

officials of the local government unit involved have made the judge-

nient that there is not in fact sufficient capacity for the additional

load, and numerous private citizens oppose the grant of the Variance.

We are not convinced by the Agencyvs arguments. We find that

the test for Variances under Rule 958(b) is essentially the same as

that for Rule 962: a balancing of the hardship likely to be suffered

by the Petitioner against the likelihood of environmental harm.

We see no interference with local government affairs, as the

Agency pleads, in this decision, Lombard correctly declined to

provide the certification required by Rule 958(b), since adequate

capacity for transport does not now exist, In granting the Variance

we decide that such capacity wili~xist prior to the nursing home’s

opening, and that as a result there will be little or no environ-

mental damage. The Variance is from the Board’s own Regulation,

and does not affect any decision by Lombard on the issue of the

proposed nursing home.

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Nor do we see that the decision will impose any liability on

Lombard. Our grant of a Variance will be conditioned on completion

of the sewer separation program and the installation of the holding

tank mentioned above. These conditions should minimize, or even

eliminate, any contribution by the nursing home to possible future

violations. Whether Lombard may be liable for future violations is

not the issue: It is, instead, whether the grant of this Variance

will, or may, impose any additional liability on Lombard. The

conditions on the Variance should prevent such an imposition.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:

1. Petitioner Land America Corporation be granted a Variance

from Rules 958(b) and 962 of Chapter 3: Water Pollution, to allow

the construction of a 282—bed nursing home in Lombard, Illinois,

subject to the following conditions:

a. Said nursing home shall commence operation

only after completion of the Village of Lombard’s

sewer separation program described as “Parts A, B,

C and D” in the foregoing Opinion.

b Petitioner shall construct and operate an

84,600 gallon holding tank for the retention of sewage

flows from its nursing home; the tank shall be operated

so as to discharge only during off—peak hours of

operation for the Village of Lombard North Sewage

Treatment Plant and so as to prevent, to the extent

possible, discharges to said treatment plant during

periods of wet weather excess flows.

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2. Petitioner Land America Corporation shall, within thirty

(30) days of the date of this Order, execute and forward to the

Environmental Protection Agency, Control Program Coordinator,

2200 Churchill Road, Springfield, Illinois 62706, a Certificate

of Acceptance in the following form:

I, (We),

_________________________

having read

the Order of the Illinois Pollution Control Board

in case No. PCB 75-426, understand and accept said

Order, realizing that such acceptance renders all

terms and conditions thereto binding and enforceable.

Mr. James Young concurred,

SIGNED

TITLE

DATE

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, e eby certify the above Opinion and Order wqre

adopted on the

_____

day of

,

1976, by a vote of

Illinois Pollution

Board