A federal judge has refused to lift the shut-down order slapped on a suburban medical equipment sterilization plant, granting a win to Illinois state officials in the legal battle over the fate of the Willowbrook facility.
On Feb. 20, U.S. District Judge Matthew F. Kennelly denied the request from Sterigenics for a temporary restraining order to block the Illinois Environmental Protection Agency from enforcing its so-called emergency “seal order,” barring Sterigenics from using its stores of ethylene oxide (EO) gas, essential to its process of sterilizing surgical kits and other medical devices.
The decision came one day after Sterigenics had filed suit against the IEPA in federal court, and five days since the IEPA had imposed the seal order, all but shutting down operations at Sterigenics’ Willowbrook plant.
In its complaint, Sterigenics argued the emergency asserted by the state to justify the shut-down order does not exist, and the IEPA overstepped the bounds of its authority, ignoring its own permit in the process.
Illinois Attorney General Kwame Raoul
Sterigenics asserted its EO emissions have never violated the terms of the operating permit issued by the IEPA, which the agency most recently renewed in 2015.
“The IEPA has taken no action to revoke, alter, modify, or terminate the operating permits it issued to Sterigenics,” Sterigenics wrote in its complaint.
“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.”
In response, lawyers from the office of Illinois Attorney General Kwame Raoul, representing the IEPA in the action, for the first time directly asserted the state holds Sterigenics violated the terms of its operating permit.
In its response, the state does not assert Sterigenics emitted more EO than its IEPA permit authorized. Rather, the state argues new information from the U.S. EPA and other federal agencies has persuaded the IEPA Sterigenics’ EO emissions constitute “an imminent and substantial endangerment to the public health” of those living in Willowbrook and surrounding communities.
The state’s filing again pointed to an assessment completed by the federal Agency for Toxic Substances and Disease Registry, in which federal regulators said they believed long term exposure to EO has elevated the risk of contracting cancer in the region.
Further, they pointed to a 2016 report from the U.S. EPA indicating the agency now believes EO is “30 times more potent at causing cancer than previously estimated.”
The state argued this now means the state considers Sterigenics to have violated its permit, because the company “caused, threatened or allowed air pollution in Illinois,” regardless of the actual emissions limits set by Sterigenics’ operating permit under the Clean Air Act Permit Program.
“It is apparent that the Defendants (IEPA and other state officials) do not share the view that Sterigenics is in full compliance with its CAAPP permit or state environmental laws and regulations,” the state wrote in its response to Sterigenics’ TRO request.
Further, the state asserted the TRO should be denied because Sterigenics chose to take its case to federal court, and not appeal the seal order to the Illinois Pollution Control Board or to a state court in Illinois.
And the state argued the judge should discount Sterigenics’ assertions the state’s order would irreparably harm its business and would leave hospitals and other health care providers scrambling to find new suppliers for the sterilized medical supplies Sterigenics produces.
“The increased risk to people in the community, and in particular to children, of getting cancer from Sterigenics’ release of ethylene oxide, outweighs any monetary harm to Sterigenics or ‘disruption’ to the medical supply chain that may occur while customers find other alternatives and/or Sterigenics addresses the releases from its facility,” the Attorney General wrote.
The Feb. 20 decision came as another federal judge, U.S. District Judge John Z. Lee, considers whether to also grant a request from Raoul and DuPage County State’s Attorney Robert Berlin to send back to state court the state’s lawsuit demanding Sterigenics be closed.
Sterigenics has responded to that lawsuit by asserting the state and county prosecutors have merely used state law as a pretext to use the courts to rewrite federal air pollution rules.
Sterigenics is represented by the firm of Sidley Austin LLP, of Chicago.
The matter landed in court last fall, as political pressure mounted against state officials to take action against Sterigenics.
The pressure only intensified following the election of Gov. JB Pritzker, who raised the Sterigenics emissions as a campaign issue as he sought the governor’s mansion in 2018.
After being inaugurated in early February, Pritzker appointed John Kim as director of the IEPA. Kim later signed the Feb. 15 order shutting down Sterigenics.