Sterigenics: IL EPA shut-down order oversteps the law; Asks federal court to block 'extralegal' action

By Jonathan Bilyk | Feb 19, 2019

Calling the action an attempt to sidestep the courts and the law, Sterigenics has filed suit against the Illinois Environmental Protection Agency, asking a federal judge to remove the order the state agency slapped on late last Friday, effectively shuttering Sterigenics’ Willowbrook plant.

On Feb. 19, Sterigenics brought its complaint to Chicago federal court, asserting the IEPA, which is ultimately led by Gov. JB Pritzker, acted outside the scope of its authority to place a “seal order” on containers of ethylene oxide (EO) gas stored at Sterigenics’ facility in Chicago’s western suburbs.

The order all but shut down operations at the Sterigenics facility so far this week, as the gas is essential to Sterigenics’ process of sterilizing surgical kits and other medical devices.

In its complaint, Sterigenics asserts the emergency cited by the IEPA in issuing the seal order does not exist.

Illinois Attorney General Kwame Raoul  

Rather, Sterigenics said the seal order was merely an attempt by the IEPA to declare a non-existent emergency to justify ignoring its own permitting process.

“To be clear, as IEPA has recognized, the operations that the Seal Order effectively shuts down have been expressly authorized by IEPA pursuant to the operating permits issued by that very agency, and which remain in full force and effect,” Sterigenics said in its complaint. “The IEPA has taken no action to revoke, alter, modify, or terminate the operating permits it issued to Sterigenics.

“Instead, it has summarily issued a Seal Order in an extra-legal attempt to accomplish instantaneously what it cannot lawfully do without proper notice and judicial process.

“The Seal Order violates the due process requirements of the federal Constitution, does not comply with the requirements set forth in the Illinois Environmental Protection Act, and is inconsistent with governing federal and Illinois law and regulations pertaining to ethylene oxide.”

Sterigenics has asked the court to issue temporary restraining order and injunctions blocking the state from enforcing the IEPA seal order and allowing the company to reopen its facility.

A hearing on the TRO request is scheduled for Feb. 20.

Sterigenics’ Willowbrook facility has been engulfed in public controversy since this summer, when the federal Agency for Toxic Substances and Disease Registry issued a report asserting Sterigenics’ EO emissions were linked to an increased risk for incidences of cancer in the region.

The ATSDR’s report relied on emissions data supplied by the U.S. EPA. Since then, subsequent EO monitoring data released by the U.S. EPA has indicated what the agency called elevated EO levels in the air near the Sterigenics facility.

Sterigenics has noted EO levels in nearby residential areas were equivalent to typical EO levels throughout the Chicago area. The company noted the U.S. EPA has indicated it believes more monitoring and assessment was needed.

However, in the intervening months, pressure has built on elected officials to shut down Sterigenics’ operations.

The pressure further ratcheted up after the election of Pritzker as governor. Pritzker, a Democrat, had criticized his predecessor, Republican Gov. Bruce Rauner, for not doing enough to reassure area residents and stop emissions from the plant.

After Pritzker’s election, many of Illinois’ top Democrats, including Illinois U.S. Senators Dick Durbin and Tammy Duckworth, and a number of members of Congress, called on Pritzker to take action against Sterigenics.

Late in 2018, former Illinois Attorney General Lisa Madigan filed suit against Sterigenics, joined by DuPage County State’s Attorney Robert Berlin, asking the court to order Sterigenics closed.

Sterigenics took the matter to federal court, and in that case, U.S. District Judge John Z. Lee is weighing the the request by new Attorney General Kwame Raoul to send the matter back to DuPage County Circuit Court for proceedings.

On Feb. 15, Lee indicated he would need more time to sort through the arguments, indicating he would continue the action through the remainder of February.

Shortly after Lee issued that statement, IEPA Director John J. Kim, who was appointed by Pritzker, issued the seal order, around 5 p.m. Friday.

Within hours of the issuance of the order, Sterigenics responded by stating it intended to seek to reverse the “indefensible” order.

In its complaint filed Feb. 19, Sterigenics noted even the lawsuit filed by the Attorney General and DuPage County State’s Attorney’s offices on behalf of the IEPA fails to mention any “emergency” from Sterigenics’ operations.

Sterigenics’ lawsuit further asserts even the ATSDR report which forms the basis of the state’s legal actions “did not characterize an immediate threat to health,” but rather the cumulative effects of long-term exposure to “the highest maximum concentrations observed during the monitoring period” over 30 years.

Sterigenics further noted throughout the complaint that its plant has never violated the terms of the operating permit issued by the IEPA, and renewed most recently in 2015, granting it explicit permission to emit EO, so long as emissions stay within the range allowed by regulations.

“The Willowbrook facility operates pursuant to express authorizations issued by the IEPA in the form of lawful permits that remain in full force and effect,” Sterigenics said in its lawsuit.

“If IEPA wants to alter those authorization and regulations, it should seek to implement what it deems to be appropriate emissions standards through the CAAPP permit IEPA itself issued, or initiate rule-making or legislative activity to change emissions standards and regulations, as it is authorized to do through the Clean Air Act.

“In fact, even though Sterigenics disputes the propriety of the (Illinois Attorney General) Action, at the very least proceeding via litigation allows Sterigenics to receive pre-deprivation process, thus protecting its due process rights. But instead of proceeding through its already filed lawsuit, IEPA and Kim have declared an emergency based on an ATSDR report, which was released six months ago, and the IRIS assessment, which was released two years ago.

“There is no emergency.”

Sterigenics is represented in the action by attorneys with the firm of Sidley Austin LLP, of Chicago.

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Organizations in this Story

Agency for Toxic Substances and Disease Registry (ATSDR) Circuit Court of Dupage County DuPage County State's Attorney's Office Illinois Attorney General Illinois Environmental Protection Agency Illinois Governor J.B. Pritzker Sidley Austin LLP Sterigenics U.S Environmental Protection Agency U.S. District Court for the Northern District of Illinois

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