With the state of Illinois’ legal gambit to shut down a Willowbrook medical device sterilization facility now back in DuPage County court, two more suburbs - Burr Ridge and Hinsdale - have added their names to the list of municipal governments seeking to join the court action as plaintiffs.
On May 9 and May 10, the villages of Burr Ridge and Hinsdale filed petitions before DuPage County Circuit Judge Paul Fullerton, asking for permission to intervene in the lawsuit brought by the Illinois Attorney General’s office against Sterigenics over its emissions of the sterilizing compound ethylene oxide. If granted, the petitions would, essentially, allow the villages to become plaintiffs in their own right, representing their own interests in the case over Sterigenics’ Willowbrook sterilization facility and pressing complaints of their own against the company.
The petitions come months after the village of Willowbrook and city of Darien similarly asked the judge for permission to intervene in the case. Those two communities’ petitions had been placed on hold while Sterigenics and the state argued over whether the case should be tried in federal court in Chicago or in DuPage County court in Wheaton.
A federal judge ultimately sent the matter back to DuPage County in April. Hinsdale and Burr Ridge then filed their petitions.
Judge Fullerton gave attorneys for the state and for Sterigenics until June 6 to respond to the four municipalities’ petitions.
According to the petitions, the villages assert they and their residents have been harmed by the release of ethylene oxide from Sterigenics’ Willowbrook facility for decades.
Sterigenics has noted repeatedly in court filings it was operating within the rules laid out by the Illinois Environmental Protection Agency, and has never violated its operating permit.
Last fall, then-Illinois Attorney General Lisa Madigan and DuPage County State’s Attorney Robert Berlin sued Sterigenics over the emissions from its Willowbrook plant.
The lawsuit does not accuse Sterigenics of violating the federal Clean Air Act, or of violating the operating permit it was issued by the state’s EPA, and which was renewed by the state of Illinois as recently as 2015. According to the state’s lawsuit, Sterigenics emitted on average about 18 percent of the amount of ethylene oxide over the past 15 years that the state of Illinois had given it permission to emit.
Rather, the state’s lawsuit asked the court to still punish Sterigenics for creating a “public nuisance” and “public health hazard” by emitting ethylene oxide at all.
Sterigenics has said the ethylene oxide is essential to its process for sterilizing essential medical devices, including surgical tools and instruments. Industry representatives say more than half of all medical devices and 90 percent of surgical kits used in U.S. operating rooms are sterilized using ethylene oxide.
Sterigenics and representatives of medical device makers have said alternative sterilization methods using heat and radiation can weaken materials in many of these devices and compromise their effectiveness, placing patients at greater risk of injury and infection.
Sterigenics has argued the lawsuit represented a thinly veiled attempt by state officials to sidestep federal law and substitute an order from a DuPage County judge for the rulemaking processes typically required 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 an elevated cancer risk for people in and around Willowbrook and linked that increased risk to ethylene oxide emissions.
Attorney General Kwame Raoul has continued the lawsuit since he took office in February.
However, as the lawsuit was pending, the IEPA under Gov. JB Pritzker issued a so-called “seal order” effectively shuttering the plant.
Sterigenics has challenged that seal order in court, and their lawsuit against the IEPA remains pending in DuPage County court.
In the weeks after the cases landed in court, the village of Willowbrook also announced it had conducted testing of its own, showing elevated ethylene oxide levels in that community. Sterigenics has noted in court filings the village has steadfastly refused to release information and documents concerning their testing and testing methods, despite repeated requests from Sterigenics.
Willowbrook also contested Sterigenics’ attempts in federal court to compel Willowbrook to release the information.
With all litigation between the state and Sterigenics now in DuPage County court, the four villages say they have “a significant interest in the outcome,” yet will be “bound by any order or judgment entered.” They said representation by the state “is inadequate” to properly press the villages’ “claims for nuisance, trespass, and unreasonably dangerous activity.”
They all note their borders lie near the Sterigenics Willowbrook facility. Hinsdale, for instance, notes Hinsdale Central High School is four miles from Sterigenics’ plant and “several hundred Hinsdale residents … live within close proximity of the Sterigenics building.”
In their petitions, the communities have asked the judge to order Sterigenics to stop using ethylene oxide altogether, and to pay the communities unspecified compensatory damages, plus attorney fees.
The villages of Burr Ridge and Hinsdale are represented in the actions by attorneys with the firm of Klein, Thorpe and Jenkins Ltd., of Chicago. The village of Willowbrook is represented by the firm of Storino Ramello and Durkin, of Rosemont. The city of Darien is represented by the firm of Rosenthal Murphey Coblentz & Donahue, of Chicago.
Sterigenics is represented by the firm of Sidley Austin LLP, of Chicago.