ILLINOIS POLLUTION CONTROL BOARD

January 17, 1974

GRIFFITH & HOLLEY

PETITIONERS

)

v.

)

PCB 73—443

ENVIRONMENTAL PROTECTION AGENCY

)

CARL E. KASTEN, ATTORNEY, in behalf of GRIFFITH & HOLLEY

FRED HOPPER, ATTORNEY, in behalf of the ENVIRONMENTAL PROTECTION AGENCY

OPINION AND ORDER OF THE BOARD (by Mr. Marder)

This case comes to the Board on Petitioners’ petition for variance

from a sewer ban placed on Carlinville, Illinois, by the Environmental

Protection Agency pursuant to Chapter 3, Rule 921 (a) of the Water Poll-

ution Regulations of Illinois. The Petition was filed on October 19,

1973. The Agency responded by its recommendation on November 26, 1973,

with a recommendation that a variance from Rule 901 (a) of Chapter 3 be

denied, and that relief from the sewer ban be denied unless Petitioners

show the transport capacity of the High Street sewer is adequate to

handle its present load and that which will be generated by the nursing

home, and that the future residents of the facility would be persons

already serviced by the Carlinville sewage treatment plant. Hearing was

held December 3, 1973. Members of the public were present to object to

the grant of a variance.

A motion was made to.strike the recommendation of the Agency, as the

recommendation was filed later than the 21 days required by the Proced-

ural Rule 703 (a). This motion is denied. In City of Carbondale v.

Environmental Protection Agency, PCB 73-430, the same contention was

pressed, and the Board held that unless a showing of prejudice is shown

by the Petitioner, the recommendation will not be stricken. The Board

has here determined that Petitioners are not prejudiced by the late fii-

ing of the recommendation.

Petitioners are two married couples in partnership for the purpose of

owning a certain tract of land at 826 High Street, Carlinville, Illinois

and a corporation whose stockholders are Mrs. Holley and Mr. and Mrs.

Griffith, which is incorporated for the purpose of

operating the

Friend-

ship

Nursing Home at 826 High Street. The Friendship Nursing Home is

presently ready for occupancy and is a forty-nine bed facility.

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The chronology of events in this action is vital to our determination

in this case.

In November of 1972 Petitioners decided to carry out a plan to build

a nursing home on High Street. Also during that month, Messrs. Griffit.”

and Holley went to Springfield to talk to various state agencies as to

the requirements to build a nursing home in Carlinville. In December

of 1972

Mr. Holley carried around a petition (Pet. Ex.

1) to be signed

by residents living within 400 feet of the proposed site, stating theie

were no objections to a 49—bed nursing home. This petition was submit-

ted to the city council in Carlinville, which approved Petitioners’ re-

quest for leave to build the home on April 2, 1973 (Pet. Ex. 1). On

April 4 application was made to the Comprehensive Health Planning

AgeflCYv

in order to allow for a capital expenditure for which Social Security

would give approval. To achieve this approval, proof is necessary that

there is need for nursing care facilities in the area. Petitioners sob-

mitted two letters to verify the need for more nursing care beds. Pet-

itioners’ Exhibit #10 is a letter from the State Department of Public

Health certifying to the need for 388 beds in the Litchfield Service

Area, in which Carlinville is located. Petitioners’ E~thibit#18 is a

letter from the County Department of Public Aid certifying to the need

of 180 beds in Carlinville. On May 5, 1973, Petitioners signed a cort

tract to build the facility (Pet. Ex. #2). On May 7 approval was re~

ceived from the Comprehensive Health Planning Agency to build the facil-

ity. On Friday, June 1, the Environmental Protection Agency sent a not1~

fication letter to Carlinville informing the governing council that CO

more sewer tap—ons could be allowed to the sewer system that feeds the

Carlinville sewage treatment plant. On June 6 the city granted Petitiofl

ers a sewer permit and Petitioners tapped into~the High Street sewer.

On October 18, and after consultation with the Agency, and at the advice

of Ms. Barbara Sidler, attorney for the Agency, Petitioners filed this

variance petition. On November 27, 1973, the State Department of pub-

lic Health certified the structure as adequate for a nursing home.

The land the home is built on is a parcel 144 feet front footage by

186 feet (R. 26). It was purchased at a cost of $6500 (Pet.) by Mr. Ted

Holley. The cost of constructing the facility was $325,000 (R. 32).

Another $8000-lO,000 was expended out of pocket to cover initial expenses

for the project cost (P. 32). Another $20,000 was spent to supply and

furnish the home (R. 37) This brings in a total of $361,500 that Pet-

itioners have committed to the venture.

Testimony showed a great need for nursing home facilities in the area.

Margaret Bloomfield is a caseworker for the Department of Public Aid for

the county (R. 106). She testified that in 1971 new standards for ourS-

irig home facilities were enacted (R 108)

.

Nursing homes in old strUC

tures were to be phased out by granting these homes provisional licenses

to operate (R. 108). These regulations also barred recipients of public

aid to enter these homes at all. 65 of those in nursing home faci3-J~t~1~es

in the county are public aid recipients (R, 109). The situation is SO

tight that many of the public aid recipients are being sent to homes Out

of the county (R. 109)

.

Even the county nursing home does not meet the

requirements as set forth by the state (R, 109)

.

After the provisional

licenses expire in 1974, no nursing home in the town will be able ~-O

1O—~8C

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have nursing care patients (R. 110). The town will have 145 beds phased

out in 1974 (R. 109). There are no empty beds for nursing care patients

available in the county at this time (R. 112). Mrs. Bloomfield testified

that in her opinion the opening of the home in question is an absolute

necessity (R. 113). The bulk of those entering the home will be trans-

ferring from those already in the city (R. 117).

Mrs. Beatrice Ruth Lick of Carlinville testified that her 73 year

old mother lives with her. She has been trying to place her in a home

for two months (R. 81-82) but has been informed that no beds were avail-

able in the county (R. 84). She applied to the Woodlawn Nursing Home

but was informed there that they could not take public aid cases (R. 82)

The Agency recommends denial of the variance basically because of the

overloaded conditions at the Carlinville sewage treatment plant. This

plant is a trickling filter facility, with a design average flow of~55

mgd and a design maximum flow of J,0l mgd (Agency Rec. P. 2). The plant

bypasses sewage at two points. The first is about 200 feet outside the

plant and diverts raw sewage into the Blackburn Branch of Macoupin Creek

(R. 148 (R. 175) and the second after primary treatment in the clari-

fier (R. 149)

.

Data from Agency samples are as follows:

Agency Effluent Grab Samples (Agy. Rec. P. 2)

Date

BOD

Suspended Solids

Fecal Coliform

(~7l)

(mg/i)

(Cou.nts/l00 ml)

Mar 8/73*

312

80

88,000

Mar 13/73

33

39

180,000

Aug 7/73

60

27

750,000

Sep 24/73

27

41

700,000

*

Raw sewage bypassing occurring

This data shows a failure of the plant to meet the requirements of

Rule 405 of Chapter 3 and of Rule 404 (a) to meet the 30 mg/i BOD and

37 mg/l suspended solids standards consistently. Testimony by James

Leimicke (R. 150) showed discoloration of the receiving stream and vis-

ible fecal solids in the water indicate a violation of Rule 203 (a) of

Chapter 3.

The plant’s design calls for a population equivalent of 5500 and a

hydraulic loading of 550,000 gpd. Reports filed by the city to the

Agency indicated continued loading in the area of 1.0 mgd (Resp. Group

Ex. #3) and an average of 964,000 gpd (Agency Rec. P. 3)

.

The Agency

contends, and this is not rebutted, that under the Environmental Pro-

tection Act it cannot issue a permit for a sewer extension to an over-

loaded plant (Agency Rec. P. 4).

There is a dispute as to the gallonage that the home will produce.

The Agency contends that it will be 125 gpd per bed, based on the Man-

10—689

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ual of Septic Tank Practice, published by the U.S. Department of Public

Health. When Petitioners examined James Leimicke of the Agency, he

testified to his belief that the facility would use 75—100 gpd per bed

(R. 170).

There are plans for upgrading the Carlinville plant. Laurence Boente,

representing the mayor of Carlinville, testified that plans have been

approved for funding of an upgrading of the plant. Contracts are to be

let in the spring of 1974 (R. 74)

,

depending on the availability of fed-

eral funds. Carlinville is 49th on the priority list and both Mr. Boente

(R. 89) and Mr. Leimicke (R. 102) agree that the town will get funding.

The Agency also contends that the High Street sewer fronting Petition-

ers’ facility is inadequate to carry the flow that it would generate.

Citizens testified as to their problems with the sewer. Carmelita Sel—

vo (R. 184), Lois Undercoffer (R. 191)

,

and Edwin Walter (R. 193) testi-

fied as to one or two backups in the sewer in the last three years. The

hearing officer in his statement concerning the credibility of witnesses

filed December 18, 1973, stated that this testimony was of a very gener-

al nature, not leading to an understanding of where their problems orig-

inated and how Petitioners’ variance would affect them.

Charley Jackson of the Carlinville Water and Street Department testi-

fied that the sewer in question is an 8” sewer that feeds a 10” sewer

that flows into a 12” sewer that ends in a 21” main. From observation

and a test run on the flow in these sewers starting at Buchanan Street,

it was indicated that there was no problem with its flow (R. 121). There

also have been no complaints registered with his department in 3 1/2

years for this area (R. 122).

Petitioners’ Exhibit #20 is a letter from the city engineer, Harold

D. Meisenheimer, stating that an 8” sewer has the capacity to serve

350 lots or 1200 P.E. The letter goes on to say, and there is no testi-

mony contradicting this, that the sewer now serves 50 homes.

It seems from the record that Petitioners never applied for or were

granted a permit as required by Rule 901 (c) of Chapter 3. The Agency

contends that had Petitioners done so, this situation would not have

reached its present stage, as they would never have been granted a per-

mit.

The Board will allow a variance from the Agency’s

sewer ban. This is

based not only on the financial hardship that Petitioners will undergo

if not allowed to operate, but also because the evidence has shown a

severe need for this type of facility in Carlinville. The hardship to

the senior citizens of the community outweighs the lack of Petitioners’

checking into the need for a permit or other culpable acts by Petition-

ers, and the environmental impact of the facility’s discharges. The

quality of life for these people, who are least able to care for them-

selves, should be protected. Petitioners have a facility which will

meet the needs of these people. To deny this variance would put a great

hardship on the community. The need for more nursing bed facilities out—

10— 690

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weighs the harm that the source will cause (C—W Enterprises v. Environ-

mental Protection Agency, PCB 73-205).

The evidence also shows that most of the residents will come from the

nursing homes in the area that will be closing down because they will

lose their provisional licenses, and from the city of Carlinville. Where

a new source to an overloaded plant will house people already served by

the plant, a variance may be granted (New Hope Missionary Baptist Church

v. Environmental Protection Agency, PCB 72-417; Foss Park District v.

Environmental Protection Agency, PCB 72-447 and Fields, Goldman & Magee

v. Environmental Protection Agency, PCB 73-362). Petitioners were not

sure how many residents would be from the area serviced by the Carlin-

yule plant, but the Board suggests that the population of the home be

restricted so that 90 of it consists of those already served by the Car-

linville sewage treatment plant.

The testimony about the local sewer indicates to the Board that it is

adequate to meet the needs of the facility. Testimony shows that to cut

down on water use, paper plates, etc., would be used at the home. The

use of such disposable products will be ordered.

This Opinion constitutes the findings of fact and conclusions of law

of the Board.

~RDER

IT IS THE ORDER of the Pollution Control Board that:

Petitioners are granted a variance from the sewer ban order of the

Illinois Environmental Protection Agency dated June 1, 1973, to con-

nect a nursing home facility located at 826 High Street, Carlinville,

Illinois, to the sanitary sewer system, subject to the following con-

dition:

1. The operators of the facility shall use disposable

paper products wherever possible and reasonable, in

order to cut down the use of water in the subject

facility until such time as the Carlinville sewage

treatment plant is upgraded to handle the additional

load.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the above Opinion and Order was adopted by the

Board on the

/7~’\

day of January, 1974, by a vote of

~‘

to

0

10

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691