ILLINOIS POLLUTION CONTROL BOARD

March

13,

1975

FIRST TRUST

AND

SAVINGS BANK

OF

)

TAYLORVILLE

)

)

Petitioner,

)

)

)

PCB 74~-448

)

ENVIRONMENTAL

PROTECTION

AGENCY

)

)

Respondent

Mr.

James Beavers, Attorney, appeared for

the

Petitioner;

Mr~

Henry Handzel, Attorney, appeared for

the

Respondent.

OPINION

&

ORDER of the Board

(by Mr. Zeitlin)

Petitioner in

this matter seeks a variance

from

Rule

962

(a)

of

Chapter Three:

Water

Pollution,

of

the

Rules

and

Regulations

of

the

Pollution Control

Board

(Board).

That Rule

requires that the Environmental

Protection Agency

(Agency) deny an operating permit,

as required by

subpart

(b)

of

Chapter Three, which would cause a violation

of the

Environmental Protection Act or

of

that Chapter

if granted.

First Trust and Savings

Bank

of Taylorville (First Trust)

filed

its

Petition for Variance in this matter on November

27,

1974.

First

Trust, acting as trustee of

an

Illinois land trust, requested

relief to

allow the use of existing

sewer facilities

to

operate

a 98 bed nursing

home in Taylorville,

Pursuant to a more

information Order entered by

the

Board

on December

5,

1974,

First

Trust filed

an amendment

to its

Petition,

In

its

Recommendation,

filed

on February

3,

1975,

the Agency

recommended

that a

variance in this matter

be

denied unless and until

Petitioner submitted proof

from the Illinois

Department of Public Health

that

such a

nursing home was actually necessary

in

the

Taylorville

area;

the Agency

further

recommended

that even if such proof

were

forthcoming

from the

Department of Public Health,

a variance

in this

matter should

be granted

only upon the condition that

Petitioner

install

appropriate

holding

tanks to prevent backups

in

surrounding

area sewers during

wet

weather.

At a hearing held in the matter on February 21,

1975, the parties

offered considerable testimony and stipulated as

to many of the facts

surrounding this matter.

Those stipulated facts,

consisting of numbered

paragraphs in First Trust’s petition (“Pet.”), and the Agency’s Recommendation

(“Rec.”),

are quite extensive, and form the basis for much of

this Opinion.

16

—

123

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—2—

On February 25,

1975,

the Agency submitted

an Amendment to

its

Recommendation.

The Agency now recommends that the variance in this

matter be granted,

subject

to considerably less stringent conditions.

On February 26,

1975,

First Trust filed

a motion for Early Decision and

Interim Relief.

The interim relief sought amounts

to permission to

operate pending events

to

be discussed below.

That motion is

considered

with this Opinion and Order.

BACKGROUND

The beneficaries of the land trust represented by First Trust

finalized their initial plan to construct a nursing home in Taylorville

in early 1974.

The land trust was formed and construction begun shortly

after that time

(R.

49).

A permit to hookup the nursing home to an

existing 8” sewer was obtained from the City of Taylorville in April of

1974

(R.

64).

Petitioners

state that they had no knowledge at that time

of

any further permits required under the Act

or the Board’s

Rules and

Regulations

(R.

65).

Petitioner’s nursing home was subsequently connected

to an existing

8”

line.

On May

10,

1974,

the Agency placed the Taylorville

Sanitary District’s

Northwest Plant on restricted status.

Petitioner’s nursing home,

currently

attached to the 8” line,

is tributary to the Northwest Plant.

Taylorville has a largely combined sanitary and storm sewer system.

At

the time the Agency placed Taylorville’s Northwest Plant

on restricted

status that plant had a current average daily flow of 1.115 MGD; the

plant’s design average flow capacity is 0.45 MGD

(R.

para.

13).

The

plant was

at that time operating with an organic load of approximately

338

of capacity, and a tributary hydraulic load

of 220

of capacity.

Since the Agency imposed it’s sewer ban, the average daily flow at

Taylorville’s Northwest Plant has been between 0.90 and 0.97 NGD.

Petitioner has also stipulated to

the Agency’s analysis of hydraulic

overloading in

the 8” sewer

to which Petitioner’s nursing home was

hooked up

(Rec.

para.

20,

22).

That sewer connects with a 10” sewer,

which

in turn is tributary to a 36” interceptor.

The 8” and 10” sewers

function as a combined storm and sanitary line, and during periods of

heavy rainfall surcharge and cause basement backups in

the area adjacent

to the nursing home.

The Agency

received several complaints

of sewer

backup problems in Taylorville

during 1974.

During

a house—to—house

inspection of the area near the nursing home,

four of

six individuals

whom the Agency was able to interview reported sewer backup problems.

The Agency felt in its

Recommendation that use of

the 8” sewer by the

nursing home would aggravate the basement backup problem.

Petitioner was notified by the Agency,

by telegram,

of the illegality

of its

connection to the 8” combined line on November 15,

1974.

After

the subsequent rejection of a Permit Application,

this action was filed

(R.

65).

16

—

124

---

—3—

DISCUSSION

The Agency’s initial opposition to an outright grant

of the variance

in this matter was based largely upon the present problem of sewer

backups in the area adjacent to the nursing home.

The Agency noted that

the Taylorville Sanitary District is currently awaiting grant funding

for the expansion of

it’s Northwest Plant.

Testimony elicited

at the

hearing indicated that the plant expansion may be operating within two

years

(R.

98).

Much of the planning and design has been substantially

completed for such additions.

There is apparently

some significant

chance that

the hydraulic overloading of the Northwest Plant may be

alleviated by the diversion of some sewers to Taylorvilie’s other treat-

ment plant

(Rec. pars 11.).

The Agency notes that operation of the nursing home would increase

the population

loading at

the Northwest Plant by approximately 1.

Further, such operation would result in an increase of actual flow to

the Northwest Plant of only 0.43.

This is due,

as the parties have

stipulated,

to the fact that nursing homes generate an estimated flow as

low as

61 gallons per bed per day, as against the standard of 100 gallons

per day.

The parties have also noted

that only about 50

of the load on

the Northwest Plant resulting from the new nursing home would be an

addition to the load currently existing.

This fact results from plans

to transfer many of

the patients who will occupy the nursing home from

other existing facilities

(R.

40,

90).

Also, the Agency notes that an NPDES final permit

(Permit NO.

IL—

0031356)

for the Taylorville Northwest Plant sets interim effluent

requirements

at 25 mg/i BOD and 40 mg/i suspended solids until June 30,

1977.

(Rec,

para.

11).

The plant is subject to effluent requirements of

10 mg/i BOD and 12 mg/l suspended solids under Rule 404(f)

of Chapter

Three:

Water Pollution.

Actual sampling

of the plant’s effluent

in

May, September and November,

1974 yielded results of 10,

14 and

19 mg/i

BOD5, and

60 and 42 mg/i suspended solids.

In light of these factors

the Agency does not feel that the nursing home’s impact on

the Northwest

Plant’s effluent will be significant.

To resolve the problem of sewer backups in

the area surrounding the

nursing home,

Petitioner stated that it is willing to construct an

alternate sewer line, bypassing both the 8” and 10” lines described

above.

This aiternate line, also

8”, would run severai blocks and flow

directly into the 36” interceptor with which

the present 8” and 10”

system intercepts.

That interceptor has an 18 MGD flow capacity

(R.

112,113).

The 7,000 gpd flow from the nursing home would thus bypass

completely the backup problem area

(R.

106).

There was testimony that

this alternative would not further aggravate the backup problem,

(R.

113),

and would not exacerbate the hydraulic or organic load on

the

Northwest Plant.

Testimony presented by the Agency tended

to agree with

this analysis

(R.

28).

16

—

125

---

—4—

The parties testified that the new sewer line would require 30 to

60 days for construction and would cost approximately $30,000

(R.

107,108),

Further, hookup by other individuals to the new line could possibly be

of

use to alleviate the presently existing backup problem

(R.

102),

Based on this proposed solution,

the Agency in the Amendment

to its

Recommendation proposes that the Board grant

this variance, but only

after the proposed 8” line has been constructed by Petitioner.

As the Agency pointed out in its

initial Recommendation,

the Board

realizes that the variance in this matter

cannot be based solely on

hardship to Petitioner,

There has been no allegation that any financial

hardships suffered by Petitioner would

be

of

a

serious

nature,

and

testimony indicated that Petitioner’s present costs are about $2,200 per

month

(R.

72).

The grant

of the variance here must also be considered in terms

of

hardship to

the public,

Such hardship,

if it

is to be found, must be

based on an outstanding need in the Taylorville community for Petitioner’s

facility, and the Board must then weigh such hardship against the

results and/or impact

of

such

additional

flow

as

will

be

generated by

Petitioner’s

operation

on

Taylorville’s

Northwest

Plant,

and

on the

backup

problem

in

the

area

of

the

nursing home.

The

record

is

replete

with testimony as to the need for facilities

such as Petitioner’s in

the Taylorville

area.

In fact, since the record

in this matter

is largely composed of testimony regarding the magnitude

of such

a need,

individual instances need

not

be cited.

It will suffice

that such a need is

generated

by

both

a present inadequacy

in the

number

of available nursing home beds,

and the imminent closure of an

existing

area nursing home due to inadequate facilities,

In

the Amendment to

its

Recommendation,

the

Agency

admits

that this need is evidently genuine.

It appears, however,

that the sewer backup problem

in the

area

of

Petitioner’s nursing home is also genuine,

and serious,

Thus, while the

Board appreciates

the plight of individuals attempting

to obtain nursing

home space, the situation here does not warrant immediate relief,

While

the need for nursing home beds in the Taylorville area has been demonstrated,

the facts here do not indicate that a dire emergency exists,

Petitioners have not shown

that a delay of 30

to 60 days,

or less,

pending the completion of the alternate sewer line to be constructed for

the nursing home, would constitute an undue private or public hardship.

Petitioners have admitted that, although due perhaps to ignorance, the

fault in

this matter lies with Petitioner,

Had Petitioners acted properly

in seeking the appropriate relief at an earlier time,

they would not now

be left with a completed, empty nursing home

(R.

29,64),

Balancing the

hardships in this matter,

the Board finds that while

it is appropriate

to grant this variance,

it would be inappropriate to impose the hardship

of

further aggravation of sewer backups on

the residents of

the area

surrounding the nursing home.

16 —126

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—5—

Petitioner’s Motion for Interim Relief seeks permission

to operate

the nursing home using the existing 8” hookup, pending completion of the

alternate line.

As we have decided that this would impose an undue

hardship on the surrounding residents, the motion must be denied.

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 First Trust and Savings Bank of Taylorvilie,

as Trustee

for Trust No,

375,

the Taylorville

Care Center,

Inc., be granted

a

variance from the requirements of Rule 962(a)

of Chapter Three:

Water

Pollution of the Board’s

Rules and Regulations to allow a sewer connection

for such nursing care facility,

as of the date of this Order,

subject to

the following conditions:

a.

Petitioner shall install an 8” sanitary sewer connecting said

nursing care facility directly to the 36” interceptor sewer running

along Chancy Ave.

in Taylorville.

b.

Petitioner shall apply for all necessary permits for the proposed

8” sanitary

sewer,

c.

Petitioner shall not generate sewage waste from its nursing

care facility unless and until such proposed

8” sanitary sewer

is con-

structed and operational.

2.

Petitioner’s Motion for Interim Relief is Denied.

I,

Christan

L. Moffett, Clerk

of the Illinois Pollution Control Bo,~rd

hereby certify

hat the above Opinion

& Order were adopted on

the

/3

‘)

day of

()~‘~

,

1975 by

a vote of

4

to p

Cu

c~/7)~I~

Christan

L. Moffett,~~rk