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
    42—45

    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
    42—46

    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.
    42—48

    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

    Back to top