ILLINOIS POLLUTION CONTROL BOARD
January
8,
1976
DU PAGE CONVALESCENT
& NURSING CENTER,
INC.,
)
Petitioner,
)
v.
)
PCB 75—312
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
Mr.
Patrick Mazza, Attorney, appeared for the Petitioner;
Mr. John
Bernborn, Attorney, appeared for the Respoiident.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
This matter
is before the Board on a Permit Appeal Petition
filed by Petitioner Du Page~Conva1èscent
&
Nursing Center,
Inc.,
~Du.Page), on August
8,
1975.
DÜ
Page asked thatthe Board overturn
certain decisions by the Environmental ProtectioTi Agency
(Agency)
concerning applications for permits to construct and operate a
sewer extension in the City of West Chicago, designed to serve a
projected nursing home to be built by Petitioner.
The Agency
filed its Answer
and. Submission of Documents on September 15,
1975;.
A hearing waE held on October -15,
1975,
in West Chicago.
The events leading to this Permit Appeal can be summarized
as follows:
1.
Petitioner filed its initial permit
application with the Agency, dated July 24,
1974,
seeking permission to construct and operate a sewer
connection and extension for its nursing home,
to be
situated near the junction of Route
59
and Colford
Road in West Chicago.
Du Page asked that
it
be
allowed to construct a 90 foot,
8 inch diameter,
sewer extension to serve the nursing home’s
estimated population equivalent
(PE)
of
210.
The sewer extension and the nursing home would
be tributary to theCity of West Chicago Sewage
Treatment Plant
(STP).
2.
That application was rejected by the
Agency in a permit denial letter dated August
1,
1974.
19—593
—2—
3.
Petitioner requested reconsideration of its
permit application in a communication to the Agency
dated January
‘17,
1975.
4.
In a letter dated February 20,
1275, the
Agency rejected Petitioner’s request for reconsideration.
5.
Petitioner applied for
a “construct only”
permit for the same sewer extension and connection in
an application dated June 16,
1975, citing improvements
to be made tç
the City of West Chicago’s Sewage Treatment
Plant.
6.
In a letter dated July 11,
1975, the Agency
denied DuPage’s
“construct only” permit application.
Petitioner’s first claim in the permit appeal is that the
Agency failed to conform to the’requirements of Section 39 of the
Environmental’ Protection Act.
That Section requires that the
Agency specify the reasons for permit denial.
Ill. Rev. ‘Stat.,
Ch.
111—1/2,
§1039
(1975)
The information contained in the Agency’s ‘rejection letters
is indeed scanty.
We need not, however, rule on the adequacy Of
the language in the Agency’s rejection letters.
Petitioner has
made its case on substantive grounds,
so that we need not decide
this case on mere procedural matters.
Petitioner presented considerable testimony and other evidence
indicating that the City of West Chicago sewage treatment plant has
considerable reserve hydraulic and organic capacity, and that the
addition of Petitioner’s nursing home will not cause overloads at
that plant.
Nor, according to the evidence submitted by Petitioner,
will the addition of the 210 PE nursing home add to any existing or
future inability of the plant to meet effluent standards.
(Pet,
Ex.
5.)
As detailed below, that evidence shows that the STP is
currently operating well below capacity
(hydraulic and organic),
is meeting the applicable effluent limits,
is still being improved
on an interim basis, and is awaiting general expansion as a regional
plant under grant funding from the federal government.
(R.
136,
137.)
The evidence presented by Petitioner was essentially unchallenged
by the Agency.
Since Petitioner has met its burden under the Act
and our Procedural Rules,
and no contrary evidence is before us,
we must grant the relief requested and overturn the Agency’s permit
decision.
19
04
—3—
HYDRAULIC
AND ORGANIC CAPACITY
The Agency never challenged’Petitioner’s evidence on the excess
hydraulic and organic capacity of the West Chicago STP.
While
Petitioner’s evidence on the subject was
noi. particularly well
organized or coherent,
it is more than sufficient to show that no
problems will be caused by the addition of the’ facility
in’ question.
The STP had, at the time of the first Permit Application sub-
mission by Petitioner,
a hydraulic design capacity of 2.44 Million
Gallons Per Day
(MGD).
Since that time,
on April 21,
1975, an old,
unused portion of the STP was placed back in operation, adding
hydraulic capacity of 0.58 MGD (Pet.~,Ex. 1,
p.
11).,
Calculations
by Petitioner indicate that the combination of the two plants results
ma
capacity of 3.5 MGD,,or
a PE of 35,000
(Pet. Ex.l,
pp.
14, 15).
Petitioner also offere.d the following figures taken from 1975 data,
showing loadings on:th~present plant for both the 3.5 MGD capacity
which
it calculated and a lower capacity of 2.63 MGD:
2.63 MGD
3.5 MGD
Present
Hydraulic Capacity~
93.2
70.0
Present
Organic Capacity
65.5
49.2
These figures were riot challenged by the Agency.
They are,
in fact,
partially borne out in a report prepared by an Agency employee,
(Pet.
Ex.
5).
There is presently no bypassing of sewage to the receiving
stream
(id.,
p.
9).
We find that the addition of 210 PB from
PetitioneF’i proposed nursing home would not cause the STP to exceed
either its hydraulic or organic capacity.
STP EFFLUENT
Data from both Petitioner and the Agency indicate that the
West Chicago STP is currently meeting the applicable 20/25 standard
for BOD5 and SS.
Although the Agency seemed to feel that
a standard
of 10/12 for BOD5 and SS should be applicable to the STP,
(e.g.,
R.
136), there is nothing in the record to indicate that that
is
the applicable standard.
There was testimony that the dilution ratio
for the West Chicago STP exceeds one to one
(R. -97~,and that the
plant is under federal funding for general plant improvement,
(R.
136,
137).
These factors,
taken with our recent action extending the dead-
line dates for municipal STP effluents,
show that the applicable
standard is 20/25.
R 74—17,
18 PCB 156
(July 17,
1975).
Exhibits
submitted by both the Petitioner ‘and Respondent indicate that these
standards are being met,
(Pet.
Ex.
1;
Resp.
Ex.
1).
19—595
—4—
The Agency also
noted that the NPDES Permit presently held
by the West Chicago STP requires that the 10/12 standard be met
by October
1,
1976,
(R.
136).
Until the State of Illinois receives
authority to administer the NPDES program,
a prospective inability
to meet an interim NPDES standard. which is more restrictive than
the general Regulations of this Board cannot he grounds
for refusal
to issue a permit in
a situation of this type.
The Agency, however,
admits that west’Chicago will be able
to have the 10/12 standard
in its NPDES Permit modified,
(R.
137,
138)
The Record
in this case disclosed no other reasons why the
agency might have refused
the requested permits.
In that Petitioner
has presented sufficient evidence to overcome any objections to the
issuance of the permit on the grounds discussed above, we find no
reason why the Agency’s action on this matter should be not reversed.
This Opinion constitutes the conclusions of
law and findings of
fact of the Board in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that Respondent
Illinois Environmental Protection Agency issue to Petitioner
Du Page
Convalescent
& Nursing Center,
Inc.,
the appropriate construction
and
operating permits
to allow the construction and use of the sewer
extension and connection facilities described in the foregoing Opinion.
Mr. James Young abstained; Dr.
Donald Satchell abstained.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, her~bycertify the above Opinion and Order were
adopted on the
~day
of January,
1976,
by a vote of
3—ca
Q4~n~ofcrk
Illinois Pollutlo
ntrol Board
19— 596