A federal judge has sent back to DuPage County court a lawsuit filed by the state against medical device sterilization company Sterigenics over alleged emissions from its plant in suburban Willowbrook, saying the state can press its pollution claims in state court against the company in large part because the state has not accused the company of violating any defined air quality standards.
On March 11, U.S. District Judge John Z. Lee granted the request of the offices of the Illinois Attorney General and DuPage County State’s Attorney, remanding to DuPage County Circuit Court the legal action filed late last year.
In that lawsuit, the state prosecutors asked the courts to step in and effectively ordering Sterigenics’ Willowbrook facility closed, allegedly for violating Illinois law by emitting ethylene oxide, even though the state has not yet presented any evidence showing the facility has operated outside the emissions range allowed under its operating permit.
The lawsuit essentially asks the court to bar Sterigenics from continuing to use ethylene oxide (EO) in its sterilization operations.
Illinois Attorney General Kwame Raoul
The lawsuit does not accuse Sterigenics of violating the federal Clean Air Act, or its operating permit issued by the Illinois Environmental Protection Agency, which was renewed by the state of Illinois as recently as 2015. According to the lawsuit, Sterigenics over the past 25 years emitted on average about 18 percent of the amount of EO the state of Illinois had given it permission to emit.
However, the state’s lawsuit said the company should still be punished for creating a “public nuisance” and “public health hazard” by emitting EO at all.
Sterigenics has said the EO is essential to its method of sterilizing surgical instruments, such as hypodermic needles and other medical tools, as alternative sterilization methods using heat and radiation can weaken the materials and compromise their effectiveness. This, Sterigenics says, can place patients at greater risk of injury and infection.
Sterigenics claims more than half of all medical devices and 90 percent of surgical kits used in operating rooms in the U.S. are sterilized using EO. Without EO, Sterigenics says, infection risks in American hospitals “would soar.”
In response to the lawsuit, Sterigenics argued the lawsuit represented a thinly veiled attempt by state officials to sidestep federal law, and substitute an order from a DuPage County judge, or other state judges, for the rulemaking processes typically required under federal law when setting pollution limits.
The state lawsuit relied heavily on data and reports issued by the U.S. EPA and the Agency for Toxic Substances and Disease Registry, which claimed to show a sharply elevated cancer risk for people in and around Willowbrook. An August 2018 report from the ATSDR linked that elevated risk to EO emissions.
The report generated public and political outcry, resulting in the lawsuit filed by outgoing Illinois Attorney General Lisa Madigan in late 2018, and continued by new Attorney General Kwame Raoul after he took office in February.
The lawsuit was then followed by an order from the IEPA under Gov. JB Pritzker, effectively shuttering the Sterigenics Willowbrook plant, based in large part on additional testing conducted by the U.S. EPA and the village of Willowbrook. Sterigenics has responded by suing the IEPA in federal court.
That lawsuit remains pending. However, a federal judge denied Sterigenics’ request for a restraining order to lift the IEPA closure order. A different judge further denied, for now, Sterigenics’ attempt to force the village of Willowbrook and the contractor it hired to conduct the air quality tests to share with Sterigenics the documentation and communications related to those tests.
The judge in that case is expected to soon rule on the state’s motion to dismiss Sterigenics’ lawsuit.
However, the March 11 ruling in the state’s lawsuit against Sterigenics means the lawsuit will proceed, on the legal turf desired by the state and DuPage County State’s Attorney Robert Berlin.
In his ruling, Judge Lee noted repeatedly the state’s lawsuit is careful to avoid implicating federal law or emissions standards, never accusing Sterigenics of violating federal Clean Air Act rules or even the standards spelled out in its state operating permit, which would be enforceable under federal law.
Rather, the judge noted, the state’s lawsuit arises under other provisions in the Illinois Environmental Protection Act, regulations from the Illinois Pollution Control Board and Illinois common law under the public nuisance theory.
“… The Court concludes that the State’s claim … does not arise under federal law,” Judge Lee wrote. “Unlike the more specific emissions standards set out in other provisions of Illinois’s SIP, the broad prohibition in (the Illinois Environmental Protection Act) cannot be seen as an ‘emission standard or limitation’; nor does it create a permitting scheme per se.”
Judge Lee wrote further: “… There are no disputed federal issues on the face of the complaint, and — as there is no way the State could have brought its claims in federal court to begin with — the Court cannot say that its complaint was drafted artfully to avoid federal jurisdiction.”
The judge also denied the state’s attempt to force Sterigenics to pay the state and DuPage County attorneys’ fees for taking the case to federal court.
Sterigenics is represented by attorneys with the firm of Sidley Austin LLP, of Chicago.