ILLINOIS POLLUTION CONTROL BOARD
June
10,
1981
MERCY HOSPITAL AND MEDICAL CENTER,
Petitioner,
v.
)
PCB 80—218
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
MR. IJEFFREY W. MAYSENT OF THE ILLINOIS HOSPITAL ASSOCIATION
APPEARED ON BEHALF OF THE PETITIONERS
(KANE AND URBANA COUNTY
HEARINGS).
MR. GEORGE WILLIAM WOLFF, ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF RESPONDENT
(KANE COUNTY HEARING).
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by J. Anderson):
The Board entered its Opinion and Order granting variance
from its emergency rules implementing the Section 21(h)
of the
Environmental Protection Act
(Act) prohibition of
lanafilling of
hazardous hospital waste on December 19,
1980.
Having learned
that the Section 37 notice required to be published by the Agency
stated that objections could be filed through December 24, 1980,
the Board on January
8 and 22,
1981 authorized the holding of
hearings at which objections filed pursuant to this notice could
be heard.
In its Order of January
8,
the Board stated that
“Eupon
completion of these hearings,
the Board
shall modify its
Order of December
19,
1980,
..
.if and as necessary”
in exercise
of its retained jurisdiction.
Hearings were accordingly held in Geneva,
Kane County on
February 10,
1981,
in
DeKalb,
DeKalb County on February
11,
1981,
in Urbana, Champaign County on February 25,
1981,
in Louisville,
Clay County on February
26,
1981,
and Kankakee,
Kankakee County
on March
3,
1981.
The hearings in all but Kane County can be
briefly summarized.
In DeKalb County
(R. DeKalb pp.
99—124), testimony in support
of the variance was presented by James Ahrens
and John A. Gjertson
of the Illinois Hospital Association
(IHA) and by Dr. Richard Morgan
of the DeKaib County Health Department.
No objections to the grant
of variance were made at hearing, although questions were asked of
the witnesses by objector Clarence Colton,
the only member of the
public in attendance.
Questions were asked, but ultimately no
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2
objections were made, by Marjorie Checkoway who filed the objection
requesting
a hearing and who was one of two members of the public
present in Champaign County
(R. Champ.
2—88) Petitioner’s testi-
mony
was presented by James Ahrens of the IHA,
Dr.
Stuart Levin
of Rush—Presbyterian St.
Luke’s Medical Center in Chicago and
consultant to the Chicago Board of Health,
Dennis Egan of Burnham
Hospital in Champaign, George Lane and Raymond Moenich of Cane
Foundation Hospital in Urbana, and Robert Mann of Mercy Hospital
in Urbana.
Neither the petitioners nor members of the public, appeared
to present testimony at the Kankakee County hearing
((R.
Kank.
1—
4).
(It must be noted that objector Valerie Jean Fisher withdrew
her objection,
on February
9, but that the hearing proceeded
because notice of hearing had been given prior to the objection’s
withdrawal.)
Objector Bob Graham appeared
in Louisville, Clay
County to express his general concern about the possibility of
contamination of the well water supply in Flora,
Illinois.
Mr.
Graham presented no evidence, nor did petitioners, who were
not represented
(R. Clay
1—8).
The one other member of the
public made no comment.
The issues were most completely aired and examined at the
hearing held in Kane County.
Members of the public were present.
James Ahrens of the IHA presented testimony concerning the general
compliance problems facing the hospital community at large.
Mr.
Ahrens stated that,
since the Board’s first interim, emergency
regulations clarifying both the scope of the infectious waste
stream and the hospital’s disposal options and responsibilities
were not in place in advance of the compliance deadline, hospitals
could not intelligently assess either the volume of waste which
could no longer be
landfilled or the cost of various disposal
options.
This aggravated existing time problems and constraints.
If the choice is made
to purchase on—site disposal equipment such
as incinerators or sterilizers, depending on the size of the
capital expenditure involved,
a hospital could become involved in
the perhaps months—long process of applying for approval of
the
expenditure from the Illinois Health Facilities Planning Board.
Even upon receipt of approval,
a hospital could become involved
in equipment delivery delays,
such as a
6 to
8 month delay
for
delivery and installation of an incinerator
(R.
Kane 10—13).
The question of the environmental effects of the grant of
variance was addressed by reference to a general written statement
of Dr. Stuart Levin
(Pet.
Kane Ex.
1,
Attach.
A),
and the specific
statement of the Agency concerning the variance petition.
Dr.
Levin’s testimony focused primarily on the merits of the statute
not of the variance.
Dr. Levin’s belief, in summary, is that
“(there
is no evidence that any garbage dump in the U.S. exists
as a public health risk or has been an infectious public health
risk or is associated with causing infections in human beings
(excluding scavengers in the dump who are not supposed to be
there)”
(R. Kane 17).
It is accordingly the opinion of Dr. Levin
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3
that Section 21(h)
of the statute
is
“a solution for
a problem
that does not exist——a solution which will cost patients and the
average taxpayer tens of millions of dollars per year”
(R.
Kane
18).
The IHA then noted and concurred with
the Agency’s Recom-
mendation
in support of
the variance which stated that “storage
of
hazardous hospital waste
could result in an environmental
problem which is perceived as more serious than
...
if
such waste
is disposed of at hazardous waste disposal sites”
(R.
Kane 13—14).
Hospital administrators supported these general contentions,
and related their efforts, discoveries and concerns relative to
achieving compliance.
Thomas Lehman of Mercy
Center in Aurora stated that his
hospital had begun investigating compliance options
in April,
1980,
based on its best guess that less than 10
of its waste was infec-
tious.
While Mercy could use its current sterilizers to treat its
waste,
its Infection Control Committee was concerned about
the
problems of storage of this volume of waste near the sterilizers
pending sterilization, because of the attendant risks of greaten
exposure of staff and patients to infection from this short term
waste storage.
Concerning incinerators, Mercy learned that the
capital cost for a small incinerator would be $50,000 to $65,000
(to be delivered 12 to
18 months after order), and that the
energy and labor costs
for the estimated daily one—hour of burn
time needed are not justifiable for a hospital its size.
Mercy
accordingly sees a central incineration facility as the most
efficient, cost effective compliance option.
However, Mr. Lehman
noted that Mercy’s scavenger
(which had refused to accept any
hazardous hospital waste effective February 15,
1981——despite
existence of the variance) had advised that while a central
incinerator was in the planning stages in the Chicagoland area,
its installation is not anticipated to be completed in less than
two to three years.
It was also the testimony of Mr. Orcutt of Mary Thompson
Hospital and Mr.
Rupiper of Copley Memorial that their hospitals
were having difficulty
in determining the best compliance option,
in part because of the lack of a permanent,
final definition of
the infectious waste stream.
In addition,
he stated that special
and other limitations of Mary Thompson’s location prohibits instal-
lation of an incinerator on the hospital grounds.
As its current
autoclaves cannot handle the quantity of waste generated,
it is
examining purchase of large sterilizers as a compliance option.
The testimony concerning deliberations at Copley suggests that
purchase of a large sterilizer may necessitate the building of
special
facilities for the processing of waste,
to avoid contami-
nation of the patient care items which are routinely sterilized
before they are re—used
(R.
Kane 71—74,
76—78).
Representative Jill Zwick,
original objector in this action,
cross—examined various witnesses and introduced evidence of her
own.
Representative Zwick questioned the failure of the IHA to
42—47
4
take steps earlier
in dealing with the problems involved in
implementation of the mandate of Section 21(h).
Inasmuch as the
landfill prohibition became
law in November,
1979 to take efI~ect
January
1,
1981,
Mrs.
Zwick suggested that when no regulations
were seen to be in place by May—June,
1980, it was remiss of
the
petitioners not to have taken the initiative at that time in
applying for
a variance, investigating the compliance options,
and so forth
(R. Kane 33-38).
Representative Zwick thereafter identified by name an existing
commercial hazardous waste incinerator
in Sauget,
Illinois,
as
well
as introducing an Agency listing of all the incinerators in
the
State of Illinois having permits to burn pathological waste
(R.
Kane 62—63,
69 Zwick Ex.
1—2).
Hospitals should,
in her opinion,
have done research into the availability
of excess capacity
in
these and municipal incinerators.
Representative Zwick,
in closing
argument, summarized her position, which is that:
“The law can be complied with.
I don’t think
anyone here today has shown that the law can’t
be complied with.
They have perhaps argued on
the merits of the law, but no one has shown
that the law cannot be complied with in a
safe method and one that would be much more
beneficial to all of our futures environmentally”
(R.
Kane
91).
Based on the records of these five hearings,
the Board does
not believe its Order of December
19,
1980 is in need of modifi-
cation.
The hardship caused by administrative uncertainty
due
to lack of final regulations defining the infectious waste stream
has only recently been ended by the Board’s adoption of
final
rules in R80—19 by its Order of May
19,
1981.
The testimony con-
cerning the existence of some unused incinerator capacity within
the state is insufficient to counter the concern for the public
health raised by statements
of IHA, hospital administrators,
and
the Agency concerning the hazards of accumulating infectious ~~aste
within or around a hospital on a long or short term basis.
Petitioners’
allegations that immediate compliance would impose
an immediate economically unreasonable hardship have similarly
not been rebutted.
Roughly one—third of the hospitals
in Illinois have certifier5
their need for variance relief.
While it may well be argued
that
hospitals should have perceived and taken action concerning the
economic and resource management effects and implications of
Section 21(h)
of the Act at an earlier date, the variance con-
ditions require these hospitals to promptly proceed to use the
additional time to reach orderly,
cost—effective compliance with
the statute and the regulations.
The Board remains convinced
that, on balance, compliance with Section 21(h) and the Board’s
implementing rules will be achieved in
a more environmentally
sound,
economically reasonable fashion by continuation of the
variance as granted, than by its termination.
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5
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby reaffirms,
and declines to modify
its Order
of December 19,
1980 in this matter.
IT
IS SO ORDERED.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify
tha1t the above Supplemental Opinion
and Order was adopted on the
~
day of
~i.
—,
1981
by
a vote of
4’~o
Christan L. Moff~~1Clerk
-*
Illinois Pollution Control Board
42—49