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
—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
—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
Illinois Pollution c~~rolBoard