E.O.R. Energy, LLC v. Pollution Control Board

2015 IL App (4th) 130443, 29 N.E.3d 691

• Court: Appellate Court of Illinois
• Decided: March 27, 2015
• Docket: 4-13-0443, 4-13-0448 cons.
• Status: Unpublished

Opinion

2015 IL App (4th) 130443 FILED March 27, 2015 Carla Bender NOS. 4-13-0443, 4-13-0448 cons. 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

E.O.R. ENERGY, LLC, ) Direct Appeal from Petitioner, ) the Order of the v. ) Illinois Pollution Control Board THE POLLUTION CONTROL BOARD, THE PEO- ) No. PCB 2007-095 PLE OF THE STATE OF ILLINOIS, and AET EN- ) VIRONMENTAL, INC., ) Respondents. ) ____________________________________________ ) ) AET ENVIRONMENTAL, INC., ) Petitioner, ) v. ) THE POLLUTION CONTROL BOARD, THE PEO- ) PLE OF THE STATE OF ILLINOIS, and E.O.R. EN- ) ERGY, LLC, ) Respondents. )

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Appleton concurred in the judgment and opinion.

OPINION

¶1 These consolidated appeals involve questions of jurisdiction and procedure in vio-

lation-enforcement proceedings before the Illinois Pollution Control Board (Board) under the

Environmental Protection Act (Environmental Act) (415 ILCS 5/1 to 58.17 (West 2004)). In

March 2007, the Illinois Environmental Protection Agency (EPA) charged two companies, peti-

tioners, E.O.R. Energy, LLC (EOR), and AET Environmental, Inc. (AET) (collectively, the

companies), with violations of the Environmental Act and its associated regulations. Specifical-

ly, the EPA alleged in its complaint that EOR and AET transported hazardous-waste acid into Illinois, where EOR stored the waste before disposing of it through injection into EOR's industri-

al wells in Sangamon and Christian counties. In June 2012, the EPA filed motions for summary

judgment. In response, the companies—for the first time in these proceedings—argued that the

acid material at issue was not a waste, but instead was used to treat EOR's wells to aid in petro-

leum extraction. Therefore, the companies claimed, their conduct fell within the exclusive regu-

latory jurisdiction of the Illinois Department of Natural Resources (DNR) under the Illinois Oil

and Gas Act (Oil and Gas Act) (225 ILCS 725/1 to 28.1 (West 2004)). The Board rejected that

argument and granted summary judgment for the EPA, concluding that the DNR's regulatory au-

thority over the injection of fluids into oil-and-gas-related wells does not encompass the injection

of hazardous waste. Instead, hazardous-waste regulation is within the exclusive province of the

EPA. The Board imposed sanctions of $60,000 against AET and $200,000 against EOR.

¶2 The companies appeal directly to this court pursuant to section 41(a) of the Envi-

ronmental Act (415 ILCS 5/41(a) (West 2004)), arguing that (1) the EPA failed to plead facts

sufficient to establish jurisdiction; (2) the EPA and Board had no jurisdiction; and (3) even if the

EPA and Board had jurisdiction, the record fails to support the Board's grant of summary judg-

ment.

¶3 To the extent the companies challenge the sufficiency of the EPA's pleadings, we

conclude they forfeited that argument by answering the complaint and failing to raise a timely

objection. We further conclude that (1) the EPA and Board had jurisdiction and (2) the undis-

puted facts established that the companies violated the Environmental Act, as alleged in the

EPA's complaint. Accordingly, we affirm the Board's grant of summary judgment.

¶4 I. BACKGROUND

¶5 Initially, we note that the companies vigorously contest many of the Board's fac-

-2- tual findings. However, because the companies' multiple procedural defaults affected the factual

record that was before the Board on summary judgment, we begin with the procedural history of

this case before turning to the undisputed facts.

¶6 A. Procedural Background

¶7 1. The EPA's March 2007 Complaint

¶8 In count I, the EPA alleged that AET and EOR violated section 21(e) of the Envi-

ronmental Act (415 ILCS 5/21(e) (West 2004)) by transporting hazardous wastes into Illinois for

storage and disposal at a site that did not meet the Environmental Act's requirements.

¶9 In count II, the EPA alleged that EOR violated sections 21(e) and (f)(1) of the

Environmental Act (415 ILCS 5/21(e), (f)(1) (West 2004)) by storing, disposing, "and/or" aban-

doning hazardous wastes at a site that did not meet the Environmental Act's requirements, there-

by conducting a hazardous-waste storage operation without a Resource Conservation and Recov-

ery Act of 1976 (RCRA) permit.

¶ 10 In count III, the EPA alleged that EOR violated (1) sections 703.121(a) and (b) of

Title 35 of the Illinois Administrative Code (Administrative Code) (35 Ill. Adm. Code

703.121(a), (b) (2003)), (2) section 704.105(a)(2) of Title 35 of the Administrative Code (35 Ill.

Adm. Code 704.105(a)(2) (2006)), and (3) section 21(f)(2) of the Environmental Act (415 ILCS

5/21(f)(2) (West 2004)) by failing to apply for or acquire an RCRA permit before storing haz-

ardous waste at its site.

¶ 11 In count IV, the EPA alleged that EOR violated multiple provisions of title 35 of

the Administrative Code, thereby violating section 21(f)(2) of the Environmental Act (415 ILCS

5/21(f)(2) (2004)), by failing to follow proper procedures, take all necessary precautions, and

keep and maintain all appropriate records regarding the management of the hazardous-waste

-3- acid.

¶ 12 Last, in count V, the EPA alleged that EOR violated section 704.121 of Title 35

of the Administrative Code (35 Ill. Adm. Code 704.121 (2006)), thereby violating section 12(g)

of the Environmental Act (415 ILCS 5/12(g) (West 2004)), by injecting hazardous waste acid

into EOR's wells without having an Underground Injection Control (UIC) permit and failing to

comply with the listed requirements of section 704.203 of Title 35 of the Administrative Code

(35 Ill. Adm. Code 704.203 (2006)).

¶ 13 In April 2007, the Board accepted the EPA's complaint for hearing. In June 2007,

the companies—through corporate officers who were not attorneys—filed separate answers to

the EPA's complaint. In October 2007, after a Board hearing officer required the companies to

hire an attorney, both companies refiled answers to the complaint through their mutual attorney,

David O'Neill. Neither company challenged (1) the EPA's or the Board's jurisdiction or (2) the

sufficiency of the EPA's complaint.

¶ 14 In January 2008, O'Neill withdrew from the case.

¶ 15 2. The EPA's Requests To Admit Facts

¶ 16 In March 2008, the EPA served AET with a request to admit facts that set forth

138 separate factual allegations. In April 2008, Lori DeVito, AET's owner, who was not an at-

torney, filed an appearance and a response to the EPA's request to admit facts.

¶ 17 In January 2009, the EPA served EOR with a request to admit facts that set forth

165 separate factual allegations. In February 2009, attorney Diane F. O'Neill entered her appear-

ance on behalf of AET and EOR. (The record does not reveal what relation, if any, exists be-

tween David O'Neill and Diane O'Neill.) Later that month, EOR filed an unsigned and unsworn

response to the EPA's request to admit facts. The response stated, in part, "[EOR], arguing on its

-4- own behalf, herein responds to the [EPA's] Request to Admit Facts." (Although the final page of

the response listed Diane F. O'Neill's name and contact information, the signature line above her

name was blank and the document was not notarized.) In March 2010, Diane O'Neill withdrew

from the case.

¶ 18 In August 2010, the EPA filed motions to deem facts admitted against both com-

panies. In its motions, the EPA cited the Board's procedural rules, which provided that (1) cor-

porations must appear before the Board only through licensed attorneys (35 Ill. Adm. Code

101.400(a)(2), amended at 31 Ill. Reg. 11610 (eff. Nov. 21, 2007)) and (2) a party's failure to

respond to a request to admit facts by timely serving upon the requesting party "a sworn state-

ment denying specifically the matters of which admission is requested" results in the matters of

fact being admitted (35 Ill. Adm. Code 101.618(f), amended at 31 Ill. Reg. 11610 (eff. Nov. 21,

2007)). The EPA argued that because neither AET nor EOR provided a sworn statement from a

licensed attorney in response to the requests to admit, the facts should be deemed admitted. Nei-

ther company responded in any form to the EPA's motions to deem facts admitted. In September

2010, the Board granted the EPA's motions to deem facts admitted.

¶ 19 3. The EPA's Motions for Summary Judgment

¶ 20 In June 2012, the EPA filed separate motions for summary judgment against AET

and EOR. In addition to the facts that the Board deemed admitted in its September 2010 ruling,

the EPA's motions for summary judgment relied upon numerous other documentary exhibits.

¶ 21 Among the EPA's exhibits was an affidavit completed by Richard Johnson, an

EPA regional manager who conducted the EPA investigation into the companies' alleged viola-

tions of the Environmental Act. Johnson stated that his investigation included multiple site in-

spections and interviews with witnesses. Johnson attached to his affidavit (1) a 10-page report

-5- from his November 2004 inspection of the waste-disposal site; (2) a 58-page "Criminal Tech-

nical Report" from the National Enforcement Investigations Center (NEIC) of the United States

Environmental Protection Agency (USEPA), which was completed as part of a federal investiga-

tion into the companies' conduct; and (3) a 42-page report from Johnson's April 2005 inspection

of the waste-disposal site, which included 34 pages of photographs, maps, diagrams, charts, and

permitting records.

¶ 22 Neither AET nor EOR moved to strike Johnson's affidavit, the attached reports, or

any of the EPA's other supporting exhibits.

¶ 23 B. The Undisputed Facts

¶ 24 Having reviewed the procedural history leading up to summary judgment, we now

set forth the undisputed facts of record. Before doing so, however, we note that the EPA's re-

quests to admit contain several seemingly inconsistent factual allegations. For example, the

EPA's request to admit facts served upon EOR contains the following factual assertions:

"60. EOR paid Luxury Wheels for the acid material.

61. EOR paid AET for the acid material.

62. EOR paid nothing for the acid material.

63. EOR paid to ship the acid material from Colorado to

Illinois.

64. Luxury Wheels paid to ship the acid material from

Colorado to Illinois."

¶ 25 When the Board granted the EPA's motion to deem facts admitted, its doing so

resulted in a blanket admission of all the facts contained in both of the EPA's requests to admit.

Obviously, if two or more of those admitted facts cannot logically coexist as true, those particu-

-6- lar facts cannot be considered undisputed. However, to the extent that we can logically reconcile

a combination of admitted facts, we will construe such facts as undisputed. For example, it is

logically possible that both EOR and Luxury Wheels paid for the acid material to be shipped

from Colorado to Illinois. It is not possible, however, that EOR paid AET or Luxury Wheels for

the acid material and also paid nothing for the acid material. Given these admissions, we will

consider it an undisputed fact that EOR paid to ship the acid material from Colorado to Illinois

and a disputed fact whether EOR paid Luxury Wheels or AET for the acid material. The compa-

nies argue on appeal that the seemingly inconsistent facts must be construed against the EPA as

the party moving for summary judgment. However, as is true of the example just given, we con-

clude that none of the seemingly inconsistent or contradictory facts in the EPA's requests to ad-

mit are material to the ultimate determination of liability in this case. Accordingly, we will not

attempt to further reconcile—or even discuss—irreconcilable facts that are not material to the

issues before us in these appeals.

¶ 26 1. The Companies and the Illinois Wells

¶ 27 AET specializes in the logistics of transportation, storage, and disposal of hazard-

ous waste generated by third-party companies. EOR is an energy company involved in petrole-

um production. The companies share an office building in Denver. Arthur Clark, a corporate

officer of EOR, also works for AET. Clark is married to DeVito, who, as already mentioned,

owns AET.

¶ 28 EOR holds the lease to two oil fields in Illinois, on which it operates oil, brine-

injection, and natural-gas wells. The first field, known as Rink-Traux, is on the northern edge of

Lake Sangchris in Christian County. The second field, known as Galloway, is at the junction of

Galloway Road and Cotton Hill Road, just northeast of the village of Pawnee in Sangamon

-7- County.

¶ 29 2. The Luxury Wheels Incident

¶ 30 In July 2002, a hazardous-materials team from the fire department of Grand Junc-

tion, Colorado, responded to an incident at Luxury Wheels, a company that produced custom

chrome automobile wheels. A 1,500-gallon tank of industrial acid—which consisted of phos-

phoric, nitric, glycolic, and fluoroboric acids mixed with a product known as Alum Etch-G—was

overheating, fuming, and producing a large orange-brown cloud. The fire department success-

fully cooled and stabilized the acid by adding large amounts of ice to the tank. After eliminating

the emergency, the fire department left it up to Luxury Wheels to arrange clean up.

¶ 31 3. AET Takes Custody of the Acid Material

¶ 32 The day after the fire department responded to the incident, Luxury Wheels hired

AET to remove and dispose of the acid material. AET obtained eight new 275-gallon plastic

storage containers, known as totes, which it used to transport the acid material away from Luxu-

ry Wheels.

¶ 33 AET shipped the acid-filled totes to Arvada Treatment Center (Arvada) in Ar-

vada, Colorado, for disposal. As part of the shipment process, AET created a "waste profile" that

listed the acid material as "Aluminum Etch (Fluoroboric Acid, Glycolic Acid) that was generated

by the etching of aluminum prior to nickel plating." AET also created a "hazardous waste mani-

fest," which described the acid material as corrosive and reactive hazardous waste. Arvada re-

jected the totes because the acid material was reacting and "off-gassing," emitting a red or orange

gas.

¶ 34 After Arvada rejected the acid material, AET prepared another waste profile to be

used in delivering the material to Safety Kleen, a disposal company in Deer Trail, Colorado.

-8- That waste profile listed the acid material as "spent aluminum etchant" and "waste byproduct

from process." Safety Kleen also rejected the totes of acid.

¶ 35 After Arvada and Safety Kleen refused to dispose of the acid material, AET

placed the totes in a semitrailer at its transfer facility. Because the acid material was producing

gas, the lids of the totes were left slightly open and the semitrailer was left open during the day-

time. A fan was placed in the semitrailer to vent the gas. While at the transfer facility, one or

more of the totes attained a temperature sufficient to melt the container. Clark—who oversaw

the storage of the acid material at AET's facility—directed an AET employee to further dilute the

acid with water and other materials. After dilution, the acid material filled 12 totes.

¶ 36 AET contacted Vickery Environmental, Inc. (Vickery), to discuss disposal of the

acid material. In anticipation of sending the material to Vickery, AET prepared a third waste

profile, which described the material as a "clear liquid that is a hazardous waste (40 C.F.R.

261)." Although AET never sent the acid material to Vickery for disposal, a representative of

Vickery suggested disposing of the material through deep-well injection. Clark and James Ham-

ilton (also an EOR corporate officer) decided to ship the acid material from AET's Colorado fa-

cility to EOR's wells in Illinois.

¶ 37 4. Shipment of the Totes to Illinois

¶ 38 On August 30, 2002, AET and EOR shipped the totes of acid from AET's ware-

house in Denver to a facility located near EOR's oil fields and the village of Pawnee in Sanga-

mon County. That facility was owned by a company known as Kincaid P & P (Kincaid). Kin-

caid employed two workers, Rick Wake and Charles Geary, whom EOR paid to maintain EOR's

wells. A bill of lading accompanying the shipment of acid material listed Luxury Wheels as the

shipper, SLT Express as the carrier, and Kincaid as the consignee.

-9- ¶ 39 5. Storage of the Totes at the Kincaid Facility

¶ 40 Upon arriving in Illinois, the totes were unloaded and placed in a structure owned

by Kincaid. The structure, which was not entirely protected from the outside weather, lacked (1)

electricity, (2) heating, (3) a containment structure to collect the acid material in the event of a

spill, (4) a fence, and (5) posted warnings that the structure contained hazardous waste. For a

period of time between August 2002 and November 2004, bags of hydrated lime were stored on

pallets next to the totes of acid material. The paper bags eventually deteriorated and lime spilled

onto the ground inside the structure. Hydrated lime is a strong base that would react violently if

it made contact with acid. EOR did not instruct Wake or Geary to separate the totes of acid from

the lime, nor did EOR inform Wake or Geary that the totes contained hazardous waste.

¶ 41 6. Injection of the Acid Material Down EOR's Wells

¶ 42 At some point prior to early 2004, EOR instructed Wake and Geary to inject the

acid material into EOR's wells on the Rink-Traux and Galloway fields. Clark told Wake and

Geary that (1) the totes contained a "light grade acid" and (2) they should "keep it out of their

eyes and wash it off if they get it on them."

¶ 43 Wake and Geary injected the acid material down the wells by fabricating a hose

fitting capable of connecting the totes with the fittings at the top of the wells. After loading a

tote into the bed of a pickup truck, Wake and Geary would drive from the storage structure to a

well. They would then connect the tote to the well and pump the acid material down the well.

Over a three-to-four-month period, Wake and Geary discharged approximately 8 1/2 totes of acid

material down EOR's wells.

¶ 44 EOR was aware that Wake and Geary were injecting the acid material into the

Rink-Traux and Galloway wells. In January 2004, Hamilton telephoned Geary at his home and

- 10 - instructed him to (1) discharge all the remaining acid material down EOR's wells as soon as pos-

sible and (2) rinse out the remaining totes.

¶ 45 7. The Federal Investigation

¶ 46 In early February 2004, the USEPA and the NEIC (the USEPA's forensic-

investigations division) served a search warrant and conducted sampling activities at the Kincaid

site. (We note that the record does not reveal how federal or state authorities learned of the

companies' activities relating to the acid material.) At the time the search warrant was executed,

the 12 totes were still inside the structure. Three of the totes were full of the acid material and

one tote was partially full. The remaining eight totes contained residue from the acid material.

Liquid samples from the full and partially full totes revealed that the acid material contained

greater than 5 mg/L of leachable chromium.

¶ 47 8. Johnson's Investigation

¶ 48 In November 2004, Johnson inspected the Kincaid site. Prior to his inspection,

Johnson reviewed EPA records and determined that the Kincaid site was not a hazardous-waste-

storage or disposal facility and had never been issued an RCRA permit to serve as a hazardous-

waste-management facility. At the Kincaid site, Johnson interviewed Wake, who stated that

Hamilton directed Wake and Geary to discharge the acid into the wells. Following his Novem-

ber 2004 inspection, Johnson received a copy of the NEIC report detailing the results of the test-

ing performed at the Kincaid site.

¶ 49 In April 2005, Johnson reinspected the Kincaid site and discovered that all 12

totes were gone. Johnson again met with Wake, who showed Johnson a "uniform hazardous

waste manifest" showing the shipment of 1,000 gallons of "corrosive and toxic hazardous waste"

from the Kincaid site to SET Environmental, Inc., in Houston, Texas, five days earlier. A "Land

- 11 - Disposal Restriction" notice accompanying the manifest indicated that the waste exhibited the

hazardous-waste characteristics for corrosivity and "Toxicity Characteristic Leaching Procedure

(TCLP) chrome."

¶ 50 C. The Board's Grant of Summary Judgment

¶ 51 1. EOR

¶ 52 EOR never responded to the EPA's motion for summary judgment. On Septem-

ber 6, 2012, the Board granted summary judgment against EOR and imposed a civil penalty of

$200,000, finding that EOR violated the Environmental Act and its associated regulations, as al-

leged in the EPA's complaint.

¶ 53 On September 12, 2012, attorney Felipe Gomez entered his appearance on behalf

of EOR. (We note that Gomez entered his appearance on behalf of AET in August 2012, before

the EPA filed its motions for summary judgment.)

¶ 54 In October 2012, EOR filed a motion to reconsider which, for the first time in

these proceedings, challenged (1) the sufficiency of the EPA's complaint and (2) the Board's ju-

risdiction to impose liability and penalties for counts I and V of the EPA's complaint. Specifical-

ly, EOR argued that the wells at issue were "Class II oil-and-gas-related injection wells" gov-

erned by the Oil and Gas Act, which fell within the exclusive regulatory jurisdiction of the DNR.

According to EOR, it utilized the acid material at issue to "treat" the wells, as is a common prac-

tice in the oil and gas industry. (We note that the EPA's request to admit facts also stated that

EOR injected the acid material to "treat" the wells. This fact was deemed admitted.)

¶ 55 In January 2013, the Board denied EOR's motion to reconsider. In a 20-page or-

der, the Board considered and rejected EOR's jurisdictional arguments. The Board concluded

that although DNR has regulatory authority over Class II injection wells, the Oil and Gas Act did

- 12 - not grant DNR authority over hazardous waste, even if such waste is injected into Class II wells.

Instead, DNR's authority to regulate "waste" injected into Class II wells is limited under the Oil

and Gas Act to the type of field waste produced during oil and gas extraction. See 225 ILCS

725/1 (West 2004) (defining "waste" for purposes of the Oil and Gas Act). The Board noted that

the EPA, however, has exclusive regulatory authority over hazardous waste. Further, EOR's

failure to respond to the EPA's request to admit facts or motion for summary judgment resulted

in an admission that the acid material was a "hazardous waste" within the meaning of the Envi-

ronmental Act. Accordingly, the Board affirmed its prior order, finding no jurisdictional defect.

¶ 56 2. AET

¶ 57 In November 2012, AET—through Gomez—filed a response to the EPA's motion

for summary judgment. Similar to EOR's motion to reconsider, AET's response challenged the

EPA's and the Board's jurisdiction and the sufficiency of the EPA's complaint. In January 2013,

the Board rejected AET's arguments and found that the uncontested facts established AET's lia-

bility under count I of the complaint. The Board granted summary judgment for the EPA and

imposed a penalty of $60,000 against AET.

¶ 58 In April 2013, the Board denied (1) AET's motion to reconsider and (2) EOR's

second motion to reconsider.

¶ 59 These appeals followed. We consolidated the appeals on the parties' joint motion.

¶ 60 II. ANALYSIS

¶ 61 The companies argue that (1) the EPA failed to plead facts sufficient to establish

jurisdiction; (2) the EPA and Board had no jurisdiction; and (3) even if the EPA and the Board

had jurisdiction, the record fails to support the Board's grant of summary judgment. We address

these arguments in turn.

- 13 - ¶ 62 A. Sufficiency of the EPA's Complaint

¶ 63 The companies contend that the EPA failed to plead "ultimate facts" sufficient to

establish the jurisdiction. We conclude that this challenge to the EPA's complaint is forfeited.

¶ 64 The Board's rules state that "[a]ll motions to strike, dismiss, or challenge the suf-

ficiency of any pleading filed with the Board must be filed within 30 days after the service of the

challenged document, unless the Board determines that material prejudice would result." 35 Ill.

Adm. Code 101.506, amended at 29 Ill. Reg. 19666 (eff. Nov. 21, 2005). In this case, the com-

panies did not object to the sufficiency of the EPA's complaint until 5 1/2 years after it was filed.

Instead, the companies answered the complaint in October 2007 and responded to each allega-

tion. Accordingly, we conclude that the companies forfeited their objections to the sufficiency of

the EPA's complaint.

¶ 65 In so concluding, we note that—unless otherwise specified—procedural rules

governing administrative proceedings should generally be interpreted and applied the same as

similar rules governing judicial proceedings. It is a well-established rule of civil practice in this

state that a respondent forfeits any objection to the sufficiency of the complaint by filing an an-

swer. See, e.g., Fox v. Heimann, 375 Ill. App. 3d 35, 41, 872 N.E.2d 126, 133 (2007) ("[W]here

a defendant files an answer to a complaint, any defect in the pleading is [forfeited]."). Accord-

ingly, we see no reason why the companies' failure to abide by section 101.506 of title 35 of the

Administrative Code should result in anything less than forfeiture of their objection to the suffi-

ciency of the EPA's complaint.

¶ 66 B. The EPA's and the Board's Jurisdiction

¶ 67 The companies argue that the EPA and the Board lacked jurisdiction because (1)

the acid material shipped into Illinois, stored at the Kincaid structure, and injected into EOR's

- 14 - wells was not "waste" but, instead, "product"; and (2) only the DNR has jurisdiction to regulate

injections into Class II wells. The Board rejected these contentions, as do we.

¶ 68 1. Standard of Review

¶ 69 As creatures of statute, administrative agencies—such as the EPA and the

Board—have only the powers that their enabling statute confers. Illinois Bell Telephone Co. v.

Illinois Commerce Comm'n, 362 Ill. App. 3d 652, 655-56, 840 N.E.2d 704, 708 (2005). "A deci-

sion rendered by an administrative agency which lacks jurisdiction over the parties or the subject

matter, or which lacks the inherent power to make or enter the decision involved, is void and

may be attacked at any time or in any court, either directly or collaterally." Board of Education

of the City of Chicago v. Board of Trustees of the Public Schools Teachers' Pension & Retire-

ment Fund of Chicago, 395 Ill. App. 3d 735, 739, 917 N.E.2d 527, 531 (2009).

¶ 70 "The determination of the scope of the agency's power and authority is a judicial

function and is not a question to be finally determined by the agency itself." County of Knox ex

rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 554, 723 N.E.2d 256, 262 (1999). The

scope of an administrative agency's jurisdiction under its enabling statute is a question of law,

which we review de novo. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,

532, 870 N.E.2d 273, 293 (2006).

¶ 71 2. Relevant Provisions of the Environmental Act

¶ 72 The General Assembly has vested the EPA with authority to investigate violations

of the Environmental Act and take summary enforcement action. 415 ILCS 5/4 (West 2004).

The Board has authority to adopt regulations and conduct proceedings under the Environmental

Act. 415 ILCS 5/5(b)-(d) (West 2004). The Board found that AET violated section 21(e) of the

Environmental Act and EOR violated sections 21(e), (f)(1), and (f)(2) and section 12(g) of the

- 15 - Environmental Act.

¶ 73 Section 21 of the Environmental Act provides, in pertinent part, that no person

shall:

"(e) Dispose, treat, store or abandon any waste, or transport

any waste into this State for disposal, treatment, storage or aban-

donment, except at a site or facility which meets the requirements

of this Act and of regulations and standards thereunder.

(f) Conduct any hazardous waste-storage, hazardous waste-

treatment or hazardous waste-disposal operation:

(1) without a RCRA permit for the site issued by the

Agency under subsection (d) of Section 39 of this Act, or in

violation of any condition imposed by such permit, includ-

ing periodic reports and full access to adequate records and

the inspection of facilities, as may be necessary to assure

compliance with this Act and with regulations and stand-

ards adopted thereunder; or

(2) in violation of any regulations or standards

adopted by the Board under this Act[.]" 415 ILCS 5/21(e),

(f)(1)-(2) (West 2004).

The Environmental Act defines "waste" as "any garbage, sludge from a waste treatment plant,

water supply treatment plant, or air pollution control facility or other discarded material, includ-

ing solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial,

mining and agricultural operations, and from community activities." 415 ILCS 5/3.535 (West

- 16 - 2004). "Hazardous waste" is defined as follows:

"[A] waste, or combination of wastes, which because of its quanti-

ty, concentration, or physical, chemical, or infectious characteris-

tics may cause or significantly contribute to an increase in mortali-

ty or an increase in serious, irreversible, or incapacitating reversi-

ble, illness; or pose a substantial present or potential hazard to hu-

man health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed, and which has

been identified, by characteristics or listing, as hazardous pursuant

to Section 3001 of the [RCRA], P.L. 94-580, or pursuant to Board

regulations." 415 ILCS 5/3.220 (West 2004).

¶ 74 Section 12(g) of the Environmental Act provides, in pertinent part, that no person

"Cause, threaten or allow the underground injection of contami-

nants without a UIC permit issued by the [EPA] under Section

39(d) of this Act, or in violation of any term or condition imposed

by such permit, or in violation of any regulations or standards

adopted by the Board or of any order adopted by the Board with

respect to the UIC program." 415 ILCS 5/12(g) (West 2004).

A "contaminant" is broadly defined as "any solid, liquid, or gaseous matter, any odor, or any

form of energy, from whatever source." 415 ILCS 5/3.165 (West 2004).

¶ 75 3. The Acid Material at Issue

¶ 76 The companies contend that the acid material at issue was not a "waste" or "haz-

- 17 - ardous waste" because it was neither "used" nor "discarded" before EOR injected it into the

wells. However, we agree with the Board's conclusion that the undisputed evidence proved oth-

erwise.

¶ 77 Luxury Wheels paid AET to remove the acid material from its facility after the

material underwent an uncontrolled and accidental chemical reaction that required an emergency

response from the hazardous-materials team of the Grand Junction fire department. AET pre-

pared a "waste material profile" and a "hazardous waste manifest" for the material. On the

waste-material profile submitted to Arvada, the box for "unused product or chemical" is left un-

checked. The hazardous-waste manifest listed the material as corrosive and reactive hazardous

waste. The waste material profile submitted to Safety Kleen described the material as "spent

aluminum etchant" generated by "etching of aluminum wheels."

¶ 78 The companies argue, however, that the generator's (Luxury Wheels) intent does

not control the determination of whether the material was "used" or "discarded." Instead, the

companies assert that because EOR was able to make use of the acid material by injecting it into

wells for a purpose related to petroleum extraction, the material was neither "used" nor "discard-

ed." The undisputed evidence rebuts this claim. After several unsuccessful attempts to dispose

of the material at waste-disposal sites in Colorado, AET and EOR decided to ship the material to

Illinois so that it could be injected down EOR's wells. Even if EOR injected the acid material

into its wells to aid in petroleum extraction, this particular acid material was a hazardous waste

under section 3.220 of the Environmental Act. Although we do not doubt that petroleum com-

panies sometimes inject acid into their wells for purposes related to petroleum extraction, the

record contains no evidence to suggest that the injection of hazardous-waste acid is a typical ac-

tivity that falls within the regulatory parameters of the Oil and Gas Act.

- 18 - ¶ 79 Further rebutting the companies' claim is the fact that most of the acid material

(seven full totes consisting of 1,925 gallons) was discharged into a "salt water disposal well" on

the Rink-Traux field, according to Johnson's unrebutted affidavit. Only 340 gallons were dis-

charged into oil or gas wells. Even more telling is the fact that five days prior to Johnson's se-

cond inspection of the Kincaid site, EOR paid to have 1,000 gallons of "corrosive and toxic haz-

ardous waste" shipped from the Kincaid site to a waste-disposal site in Houston, Texas. If the

acid material was actually used in a lawful manner for the treatment of EOR's petroleum wells,

the companies have not even attempted to explain why most of the material was either injected

into a salt-water disposal well or sent to Texas for disposal. The undisputed evidence leaves no

genuine issue of material fact as to whether the acid material was both a "waste" and a "hazard-

ous waste" as defined by the Environmental Act.

¶ 80 Because the acid material was both a "waste" and a "hazardous waste" within the

meaning of the Environmental Act, the EPA and the Board properly exercised jurisdiction over

the companies' activity vis-à-vis the acid material.

¶ 81 4. The Wells at Issue

¶ 82 The companies further contend that the EPA and the Board had no jurisdiction

because the acid material was injected into Class II wells, which fall within the exclusive regula-

tory jurisdiction of the DNR under the Oil and Gas Act. We disagree.

¶ 83 The General Assembly has created a comprehensive statutory structure for the

regulation of underground injection of materials into wells in Illinois. This program—commonly

known as the Illinois UIC program—was promulgated with federal approval pursuant to the fed-

eral UIC program, which allows states the option of implementing their own UIC programs that

comply with federal standards. 42 U.S.C. § 6904 (2006). The federal UIC program was prom-

- 19 - ulgated under the Safe Drinking Water Act (SDWA) (42 U.S.C. § 300f et seq. (2006)) and, to the

extent the program deals with hazardous waste, the RCRA (42 U.S.C. § 6901 et seq. (2006)).

¶ 84 Section 4(l) of the Environmental Act (415 ILCS 5/4(l) (West 2004)) designates

the EPA as implementing agency for all purposes of the SDWA, except for section 300h-4 of the

SDWA, which provides the authority for federally approved state programs relating to "(1) the

underground injection of brine or other fluids which are brought to the surface in connection

with oil or natural gas production or natural gas storage operations, or (2) any underground injec-

tion for the secondary or tertiary recovery of oil or natural gas." 42 U.S.C. § 300h-4 (2006). As

reflected by this jurisdictional carve-out in section 4(l) of the Environmental Act, Illinois's pack-

age of UIC-related statutes and regulations submitted to the federal government for approval

provided that Class II wells—known as "oil-and-gas-related-injection wells"—would be regulat-

ed by the DNR under the Oil and Gas Act. See 40 C.F.R. § 147.701 (2004) (approving and

adopting Illinois' proposed UIC program for Class II wells). The EPA, on the other hand, is

vested with authority over hazardous-waste injection wells (Class I and Class IV wells). See 35

Ill. Adm. Code 730.105 (2012) (classifying the six types of injection wells based upon the types

of materials injected).

¶ 85 Class II wells are defined as wells

"that inject[] any of the following types of fluids:

(1) Fluids that are brought to the surface in connec-

tion with conventional oil or natural gas production and

which may be commingled with wastewaters from gas

plants that are an integral part of production operations, un-

less those waters are classified as a hazardous waste at the

- 20 - time of injection;

(2) Fluids that are used for enhanced recovery of oil

or natural gas; and

(3) Fluids that are used for storage of hydrocarbons

that are liquid at standard temperature and pressure." 35

Ill. Adm. Code 730.105(b) (2012).

¶ 86 The companies assert that the wells at issue in this case fell within the DNR's ex-

clusive regulatory jurisdiction because the DNR issued Class II UIC permits for the wells in the

late 1990s. However, the answer to the jurisdictional question presented does not depend upon

how the wells were classified at some point in time in the past. Instead, the EPA's and the

Board's authority to regulate the activity in this case originated from the type of injections that

actually took place, which the Board concluded were not authorized Class II injections.

¶ 87 The Oil and Gas Act provides the DNR authority only over Class II injections into

Class II injection wells. Section 8b of the Oil and Gas Act provides that "[n]o person shall drill,

convert or deepen a well for the purpose of disposing of oil field brine or for using any enhanced

recovery method in any underground formation or strata without first securing a permit therefor."

225 ILCS 725/8b (West 2004). Section 6(2) of the Oil and Gas Act, which sets forth the DNR's

power to hold a hearing on a UIC permit application, refers to a "person desiring or proposing to

drill, deepen or convert any well *** for the disposal of salt water, brine, or other oil or gas field

wastes." 225 ILCS 725/6(2) (West 2004). Section 1 of the Oil and Gas Act provides that

" '[w]aste' means 'physical waste' as that term is generally understood in the oil and gas industry."

225 ILCS 725/1 (West 2004). We cite these provisions of the Oil and Gas Act to illustrate that

the DNR's regulatory power under the UIC program is clearly limited to the injection of fluids

- 21 - associated with oil and gas extraction (known as Class II fluids (62 Ill. Adm. Code 240.10,

amended at 35 Ill. Reg. 13281 (eff. July 26, 2011))). The DNR's own regulations explicitly state

that only Class II fluids may be injected into Class II wells under the UIC program. 62 Ill. Adm.

Code 240.750(i), amended at 35 Ill. Reg. 13281 (eff. July 26, 2011).

¶ 88 The type of hazardous-waste acid at issue in this case, which was produced spe-

cially for etching aluminum automobile wheels and contained traceable amounts of leachable

chromium, was not a Class II fluid that the DNR was authorized to regulate under the UIC pro-

gram or the Oil and Gas Act. Instead, because the acid material in this case clearly fell within

the Environmental Act's definition of "hazardous waste," the EPA and the Board had jurisdiction

over the injection. It does not matter for jurisdictional purposes that the hazardous waste was

injected into Class II wells.

¶ 89 We note that the companies' jurisdictional argument relies heavily upon section

45(a) of the Environmental Act (415 ILCS 5/45(a) (West 2004)), which provides, in pertinent

part, as follows:

"Nothing in this Act shall be construed to limit or supersede the

provisions of the Illinois Oil and Gas Act and the powers therein

granted to prevent the intrusion of water into oil, gas or coal strata

and to prevent the pollution of fresh water supplies by oil, gas or

salt water or oil field wastes ***. However, if the [DNR] fails to

act upon any complaint within a period of 10 working days follow-

ing the receipt of a complaint by the [DNR], the [EPA] may pro-

ceed under the provisions of this Act."

¶ 90 The companies assert that the record fails to establish the EPA waited 10 working

- 22 - days following the DNR's receipt of a complaint before proceeding under the Environmental

Act. However, the 10-day provision is a red herring because nothing in section 45(a) of the En-

vironmental Act precluded the EPA or the Board from exercising jurisdiction in this case. In

fact, section 45(a) of the Environmental Act supports the Board's determination that it had juris-

diction. As already stated, the DNR has no authority to permit the underground injection of haz-

ardous waste. In carving out a specific area of exclusive jurisdiction for the DNR in section

45(a) of the Environmental Act, the General Assembly saw fit only to grant the DNR exclusive

power to "prevent the pollution of fresh water supplies by oil, gas or salt water or oil field

wastes." 415 ILCS 5/45(a) (West 2004). Because the acid material in this case did not constitute

oil, gas, salt water, or oil field wastes, the EPA's and the Board's exercise of jurisdiction could

have done nothing to "limit or supersede the provisions" of the Oil and Gas Act or the powers

therein granted to the DNR.

¶ 91 The unpermitted injection of hazardous-waste acid into EOR's wells (1) did not

constitute a Class II injection authorized by the Oil and Gas Act or its associated regulations and;

(2) therefore, fell within the EPA's and the Board's jurisdiction to enforce the provisions of the

Environmental Act regulating hazardous waste.

¶ 92 C. The Board's Grant of Summary Judgment

¶ 93 Finally, the companies argue that the facts of record were insufficient to support

the Board's grant of summary judgment for the EPA. Before we explain why we disagree with

this contention, however, we note that EOR forfeited this claim by altogether failing to respond

to the EPA's motion for summary judgment. Accordingly, we affirm the Board's grant of sum-

mary judgment against EOR as to all counts of the EPA's complaint.

¶ 94 AET contends that because the Board found EOR liable under count I as the ship-

- 23 - per of the acid material, the "law-of-the-case doctrine" bars AET from also being found liable for

the same offense. AET points out that neither the EPA's motion for summary judgment against

EOR, nor the Board's order granting that motion, named AET as the "co-transporter" of the acid

material. Therefore, AET argues, the Board was barred from finding AET liable under section

21(e) of the Environmental Act. This argument is entirely without merit. The law-of-the-case

doctrine "bars relitigation of an issue already decided in the same case." People v. Tenner, 206

Ill. 2d 381, 395, 794 N.E.2d 238, 247 (2002). The doctrine does not, however, prohibit a finding

that two parties are jointly liable for violating a statute. AET fails to explain how the Board's

finding that EOR was liable under section 21(e) of the Environmental Act necessarily precluded

the Board from finding AET liable as well.

¶ 95 We agree with the Board's finding that the undisputed facts established AET's lia-

bility under section 21(e) of the Environmental Act, which provides, in pertinent part, that no

person shall "transport any waste into this State for disposal, treatment, storage or abandonment,

except at a site or facility which meets the requirements of this Act and of regulations and stand-

ards thereunder." 415 ILCS 5/21(e) (West 2004). Johnson's affidavit stated, in pertinent part, as

follows:

"[AET] was hired by [Luxury Wheels] to dispose of the

hazardous waste acid. After several attempts to dispose of the acid

at various hazardous waste disposal facilities, AET transferred the

hazardous waste acid to [EOR]. AET and EOR shipped the haz-

ardous waste acid to the Kincaid P & P site.

*** Prior to my site inspection, I performed a review of Il-

linois EPA records and discovered that the Kincaid P & P site is

- 24 - not a hazardous waste storage or disposal facility and has never

been issued a RCRA permit granting it permission to serve as a

hazardous waste management facility."

¶ 96 Standing alone, the factual assertions in Johnson's affidavit were sufficient to es-

tablish AET's liability under section 21(e) of the Environmental Act. AET argues on appeal that

many statements in Johnson's affidavit were (1) based largely upon hearsay, (2) unsupported by

independent evidence, and (3) factually inaccurate. However, AET forfeited these objections to

Johnson's affidavit by failing to file a motion to strike the affidavit based upon these alleged de-

ficiencies. "In Illinois, the general rule is the sufficiency of affidavits cannot be tested for the

first time on appeal where no objection was made by a motion to strike, or otherwise, in the trial

court." Arnett v. Snyder, 331 Ill. App. 3d 518, 523, 769 N.E.2d 943, 947 (2001) (citing

Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402 (1980)).

¶ 97 AET also failed to present any affidavits of its own to rebut Johnson's affidavit (or

any of the EPA's other evidence, for that matter). "When a party moving for summary judgment

files supporting affidavits containing well-pleaded facts, and the party opposing the motion files

no counteraffidavits, the material facts set forth in the movant's affidavits stand as admitted. [Ci-

tation.] The opposing party may not stand on his or her pleadings in order to create a genuine

issue of material fact. [Citation.]" Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st)

130380, ¶ 49, 2 N.E.3d 1052. AET's failure to file counteraffidavits resulted in the factual asser-

tions in Johnson's affidavit standing as admitted. Because those unrebutted factual assertions

established AET's liability under section 21(e) of the Environmental Act, we affirm the Board's

grant of summary judgment against AET.

¶ 98 III. CONCLUSION

- 25 - ¶ 99 For the reasons stated, we affirm the Board's judgment.

¶ 100 Affirmed.

- 26 -