Appeals court: Illinois authorities have final say in action over dumping of acid in spent wells

By Karen Kidd | Jan 29, 2019


CHICAGO — Two Colorado energy producers whose dumping of acidic waste into wells in Illinois has been turned back by multiple state courts can't expect federal courts to take up their cause, a federal appeals court has said.

In a rebuke issued in a Jan. 16 decision, a U.S. Seventh Circuit Court of Appeals three-judge panel informed EOR Energy and AET Environmental that they've already been told by Illinois courts that the state's Pollution Control Board has jurisdiction in the matter.

"We emphatically reject this undisguised attempt to execute an end-run around the state court's decision," the Seventh Circuit panel said in its seven-page decision, referring to previous state court findings that EOR's jurisdictional argument is without merit. "That court has considered and ruled on EOR's arguments about the distribution of power among Illinois' environmental agencies."

The Seventh Circuit isn't going to take up the matter already ruled upon by the state court, according to the decision.

U.S. Seventh Circuit Court of Appeals Chief Judge Diane P. Wood

"First, its decision is final," the decision said. "Second, there is no federal interest in which state agency is authorized to take action. And above all, EOR ignores the duty of the federal courts to respect state court judgments and the jurisdictional barrier that would exist if what it really wants is lower federal court review of the state court results."

Seventh Circuit Chief Judge Diane Wood wrote the decision in which Judge Joel Flaum and Judge David Hamilton concurred. The Seventh Circuit’s decision affirmed a ruling by a U.S. District Court judge in the Central District of Illinois to dismiss the case on constitutional, issue preclusion and other grounds.

"We agree with the district court that this suit cannot proceed in federal court," the Seventh Circuit decision said.

The two energy companies wanted federal courts to hear the case, which stems from a charge brought by the Illinois Environmental Protection Agency before the state's Pollution Control Board In March 2007. The Illinois EPA accused EOR Energy and AET Environmental of illegally transporting hazardous waste acid into the state and placing it in EOR-owned industrial wells, according to the background portion of the decision.

EOR has argued the Illinois EPA and Pollution Control Board do not have jurisdiction over the acid dump.

"EOR took that argument all the way through the Illinois courts, losing at every turn," the Seventh Circuit decision said.

After repeated losses in state courts, EOR ask the federal district court to issue a declaratory judgment that, under federal law, the Illinois EPA and the Pollution Control Board would have no jurisdiction "over any future attempts to dump similar acidic waste into its wells," the decision said.

The appeals court ruled the Illinois EPA has authority to prosecute; that the district court has no jurisdiction over which Illinois agency may enforce the state's environmental regulation; and neither does the Seventh Circuit.

"If EOR intends to ignore the state court's rulings and inject the same kinds of hazardous waste acid into the same kinds of wells, then it will have to account for its actions before the state authorities," the decision said. "If, on the other hand, EOR wants to inject into its wells an entirely different acid that is not hazardous waste under Illinois law, then it will have to take its chances in a future proceeding that is not at this time ripe for any federal court action."

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Illinois Environmental Protection Agency Illinois Pollution Control Board U.S. Court of Appeals for the Seventh Circuit

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