BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
T-TOWN DRIVE THRU, INC.,
)
Petitioner,
)
)
v.
)
PCB 07-85
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Respondent.
)
)
NOTICE
Dorothy Gunn
Mandy L. Combs
Carol Webb
Clerk
The Sharp Law Firm, P.C.
Hearing Officer
Illinois Pollution Control Board
P.O. Box 906
Illinois Pollution Control
100 West Randolph Street,
Mt. Vernon, Illinois 60091
Board
Suite 11-500
P.O. Box 19274
Chicago, Illinois 60601-3218
Springfield, Illinois 62794-
9274
PLEASE TAKE NOTICE that I have today caused to be filed a RESPONSE TO
PETITIONER’S MOTION FOR SUMMARY JUDGMENT AND RESPONDENT’S CROSS-
MOTION FOR SUMMARY JUDGMENT with the Illinois Pollution Control Board, copies of
which are served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson_______
James G. Richardson
Assistant Counsel
Dated: September 27, 2007
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Electronic Filing, Received, Clerk's Office, September 27, 2007
T-TOWN DRIVE THRU, INC.,
)
Petitioner,
)
)
v.
)
PCB 07-85
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT AND
RESPONDENT’S CROSS-MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, James G. Richardson, Assistant Counsel, and hereby submits to the
Illinois Pollution Control Board (“Board”) its Response to Petitioner’s Motion for Summary
Judgment and Respondent’s Cross-Motion for Summary Judgment. The Illinois EPA received
Petitioner’s Motion for Summary Judgment (“Motion”) on September 13, 2007. The Illinois EPA
respectfully requests that the Board deny Petitioner’s Motion and grant the Illinois EPA’s Cross-
Motion for Summary Judgment.
I. LAW AND FACTS
The Illinois EPA has nothing to add to the legal provisions cited in the Motion. As for facts,
portions of the Administrative Record (“Record” or “AR”) pertinent to this appeal, and cited by T-
Town Drive Thru, Inc. (“T-Town”), are the Illinois EPA’s determination letter (AR, pp. 1-3),
Analytical Cost Form (AR, pp. 24-25), two Stock Item Forms (AR, pp. 61, 140), and various results
of analyses performed by Teklab, Inc. (“Teklab”).
II. ARGUMENT
Electronic Filing, Received, Clerk's Office, September 27, 2007
2
The question presented in this appeal is whether the Illinois EPA can authorize payments for
costs that lack supporting documentation.
United Science Industries, Inc. (“USI”), the
environmental consultant performing remediation activities at T-Town’s facility, sought
reimbursement of $8,109.02 for analyses performed by Teklab. But there was no invoice in the
application indicating what Teklab had charged to perform these analyses or documenting that these
costs had been billed to T-Town or USI. Instead USI treated the analyses as stock items in the
application for reimbursement.
Costs lacking supporting documentation were at issue in Rezmar Corporation v. Illinois
EPA, PCB 02-91 (April 17, 2003). There the Board stated as follows:
“Based on Board precedent, the burden is on applicants to demonstrate that incurred
costs are related to corrective action, properly accounted for, and reasonable.
Beverly Malkey, as Executor of the Estate of Roger Malkey d/b/a Malkey’s Mufflers
v. IEPA, PCB 92-104 (Mar. 11, 1993) at 4. When requesting reimbursement from
the fund, the owner or operator must provide an accounting of all costs.” p. 9
The need for supporting documentation is not only critical for reimbursement from the UST Fund
but is a cornerstone for reimbursement in any institutional accounting situation. Receipts for
relatively inexpensive and mundane costs as taxicab fares and parking garage fees are routinely
required to process these expenses for reimbursement. Invoices indicate what services were
provided by what entity at what time and for what cost. They also document the fact that the
recipient of the services was in fact billed for them.
Although T-Town acknowledges that Teklab provided the analyses in question here, it
maintains that it does not have to submit an invoice from Teklab to obtain reimbursement of the
analysis costs. Motion at 20. T-Town first argues that the Illinois EPA’s action here was an attempt
to reverse budget approvals through the application for payment process. Motion at 7. But many of
the references it makes in support of this position indicate that supporting documentation and
Electronic Filing, Received, Clerk's Office, September 27, 2007
3
generally accepted accounting practices are still essential to the reimbursement process. T-Town
notes that Section 57.8(a)(1) of the Illinois Environmental Protection Act (“Act”), 415 ILCS
5/57.8(a)(1), states “In no case shall the Agency conduct additional review of any plan which was
completed within the budget, beyond auditing for adherence to the corrective action measures in the
proposal.” Motion at 8. But the sentence previous to this one provides “The Agency’s review shall
be limited to generally accepted auditing and accounting practices.” The importance of adequate
documentation also appears in the May 25, 2004 testimony of Doug Clay, manager of the Illinois
EPA’s LUST Section, and Doug Oakley, Manager of the LUST Claims Unit, cited by T-Town.
Motion at 10. There it is noted that a claims reviewer has to “add up invoices” and look for
“mandatory documents.”
T-Town next contends that this was an improper attempt by the Illinois EPA to reimburse
only what Teklab charged and makes several references to the rulemaking history of the “lump sum”
concept. Motion at 12. But the fact that the Illinois EPA would still need subcontractor invoices in
this new system was clearly stated by Doug Clay in his August 9, 2004 testimony with the
question and answer as follows:
Q. So that’s true of all the lump sum and unit rates from your perspective, that you don’t go
behind those once an invoice is submitted, saying that I’ve done that work?
A. For subcontractors, you know, we have to have backup invoices for the subs. For
example, if we’ve got a drilling subcontractor, you know, we’d want to have $19 a foot,
which is how many feet that were drilled, the dates. But that’s what we would expect
from the subcontractor. It would be from the consultant. We have to have that invoice
from the sub. But, yeah, for the lump sum and the unit rate, that’s what we would
expect.
Transcript of Proceedings Held August 9, 2004,
R04-22A (August 20, 2004) at 110-111.
T-Town’s final argument is that it submitted adequate documentation for reimbursement of
the analysis costs. Motion at 17. Apparently the adequate documentation in T-Town’s view are two
Electronic Filing, Received, Clerk's Office, September 27, 2007
4
invoices it received from USI. Motion at 2-3. But this is not an invoice by the subcontractor that
performed the analyses documenting what was charged and that these charges were billed. T-Town
additionally claims that “the usual function of subcontractor invoices was as evidence for a
consultant’s handling charge.” Motion at 18. But a review of the cited text does not support the
breadth of this conclusion.
The Act and regulations clearly prescribe that only actual costs be reimbursed and that
generally accepted accounting practices be utilized in the review of applications for payment.
Treating $8,109.02 in analysis costs as stock items did not provide the Illinois EPA with sufficient
information and documentation to authorize the reimbursement of these costs. As no invoice from
Teklab for these costs was included in the application for payment, the Illinois EPA had no choice
but to deny their payment in the March 2, 2007 decision letter.
III. CONCLUSION
For the reasons stated herein, the Illinois EPA respectfully requests that the Board deny
Petitioner’s Motion for Summary Judgment and grant the Illinois EPA’s Cross-Motion for Summary
Judgment, affirming the Illinois EPA’s denial of $8,109.02 in analysis costs identified in the March
2, 2007 final decision.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Electronic Filing, Received, Clerk's Office, September 27, 2007
1
/s/ James G. Richardson____
James G. Richardson
Assistant Counsel
Dated: September 27, 2007
Electronic Filing, Received, Clerk's Office, September 27, 2007
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on September 27, 2007 I served true
and correct copies of a RESPONSE TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT
AND RESPONDENT’S CROSS-MOTION FOR SUMMARY JUDGMENT upon the persons and
by the methods as follows:
[
ElectronicFiling
]
Dorothy Gunn
Clerk
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601-3218
[1
st
Class U.S. Mail]
Mandy L. Combs
Carol Webb
The Sharp Law Firm, P.C.
Hearing Officer
P.O. Box 906
Illinois Pollution Control Board
Mt. Vernon, Illinois 62864
P.O. Box 19274
Springfield, Illinois 62794-9274
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
/s/ James G. Richardson_____
James G. Richardson
Assistant Counsel
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Electronic Filing, Received, Clerk's Office, September 27, 2007