ILLINOIS POLLUTION CONTROL BOARD
June 19, 2008
T-TOWN DRIVE THRU, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 07-85
(UST Appeal)
ORDER OF THE BOARD (by T.E. Johnson):
This is an appeal of an Illinois Environmental Protection Agency (Agency) determination
denying reimbursement from the Underground Storage Tank (UST) Fund. T-Town Drive Thru,
Inc. (T-Town) had applied to the Agency for reimbursement concerning T-Town’s leaking
petroleum UST site located at 101 West Main Street in Teutopolis, Effingham County. The
Agency denied T-Town reimbursement in the amount of $8,109.02 for claimed “sample handling
and analysis” costs, and T-Town appealed to the Board. On April 3, 2008, the Board denied T-
Town’s motion for summary judgment, granted the Agency’s counter-motion for summary
judgment, and affirmed the Agency’s denial. Today the Board rules on T-Town’s motion to
reconsider.
T-Town filed the motion to reconsider on May 8, 2008 (Mot.), asking the Board to
reverse its April 3, 2008 decision. The Agency filed a response opposing the motion on May 22,
2008 (Resp.). A motion to reconsider may be brought “to bring to the [Board’s] attention newly
discovered evidence which was not available at the time of the hearing, changes in the law or
errors in the [Board’s] previous application of existing law.” Citizens Against Regional Landfill
v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing
Korogluyan v. Chicago Title & Trust Co.
, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st
Dist. 1991);
see also
35 Ill. Adm. Code 101.902. In addition, a motion to reconsider may specify
“facts in the record which were overlooked.” Wei Enterprises v. IEPA
, PCB 04-23, slip op. at 3
(Feb. 19, 2004).
The Board stated in its April 3, 2008 decision that the Agency’s denial letter frames the
issue on appeal.
See
,
e.g.
, Kathe’s Auto Service Center v. IEPA, PCB 96-102, slip op. at 13
(Aug. 1, 1996). The Agency denied reimbursement for lack of supporting documentation
because T-Town failed to provide the invoices of Teklab, Inc. (Teklab), the environmental
testing laboratory that analyzed the samples. In its motion for summary judgment, T-Town
maintained that Teklab “merely analyzed the samples and reported the results to [T-Town’s
contractor, United Science Industries, Inc. (USI)]. Everything else was done and provided by
USI.” T-Town Motion for Summary Judgment at 19. The Board observed, however, that other
than the costs for sampling devices ($221.97) and sample shipping ($205.60), which apparently
2
resulted from the activities of USI, the record before the Agency disclosed no “sample handling
and analysis” work performed by USI. The Board found that without Teklab’s invoices, the
Agency could not determine how much of the $7,681.45 balance was accounted for by the
laboratory’s charges. The Board affirmed the Agency, finding that without the laboratory
invoices, T-Town failed to provide adequate supporting documentation.
The Board has reviewed T-Town’s motion to reconsider and the Agency’s response.
Some of T-Town’s motion repeats arguments already considered and rejected by the Board. T-
Town’s new arguments mischaracterize the Board’s decision. The Board made no finding that
any information other than the laboratory invoices was required to be a part of T-Town’s
reimbursement application. Mot. at 9. There was no other issue on appeal, as framed by the
denial. Nor did the Board find that USI “contributed nothing” to the sample handling and
analysis work or that USI tried to “evade limits on handling charges.”
Id
. at 4, 16. However, by
omitting laboratory invoices from a claim for sample handling and laboratory analytical costs, T-
Town left a gap in the record that raised the
potential
concerns articulated by the Board and
warranted the denial issued by the Agency.
Further, contrary to T-Town’s assertions, the Board did not “mistake professional
consulting costs incurred for ‘sampling’ as costs incurred for ‘sample handling and analysis’” or
find that USI attempted to “double-dip.” Mot. at 4, 8. The Board described USI’s professional
consulting sampling precisely to clarify that it did
not
make up any part of the sample handling
and analysis. Nor is there any validity to T-Town’s contention that the Board restricted sample
handling and analysis costs to laboratory analytical charges.
Id
. at 8. Moreover, T-Town’s
arguments about Agency “
post-hoc
second-guessing” (Mot. at 14, 15) are baseless and, as the
Agency points out (Resp. at 4, 5), contradicted by the Board’s decision.
Finally, in its motion to reconsider, T-Town attempts to introduce new evidence
purportedly constituting an “explanation” of the sample handling and analysis services and “who
provided them.” Mot. at 9-11. Because these T-Town offerings are outside of the record that
was before the Agency, the Board cannot consider them.
See
L. Keller Oil Properties,
Inc./Farina v. IEPA, PCB 07-147, slip op. at 4 (Mar. 20, 2008). As the Board stated in its April
3, 2008 decision, the Board must decide whether the reimbursement application, as submitted to
the Agency, demonstrates compliance with the Environmental Protection Act (415 ILCS 5
(2006)) and the Board’s regulations.
See
,
e.g.
, Kathe’s Auto Service, PCB 96-102, slip op. at 13.
Accordingly, the Board’s review is limited to the record that was before the Agency at the time
of the Agency’s determination.
See
,
e.g.
, Karlock v. IEPA, PCB 05-127, slip op. at 7 (July 21,
2005);
see also
35 Ill. Adm. Code 105.412.
Applying the standards articulated above, the Board denies T-Town’s motion to
reconsider.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
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Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on June 19, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
