Sterigenics: IL slow-walking document requests, depositions, 'afraid truth will come out' over shutdown order

By Cook County Record | Jun 7, 2019

IEPA Headquarters, Springfield, Ill.   Jonathan Bilyk

Saying state officials are afraid “the truth will come out” about Gov. JB Pritzker’s order to close Sterigenics’ Willowbrook facility, Sterigenics has asked a DuPage County judge to force state officials to speed up their response to Sterigenics’ lawsuit and allow Sterigenics’ lawyers to question state environmental regulators under oath.

At the end of May, Sterigenics filed a motion in DuPage County Circuit Court asking Judge Paul Fullerton to order the Illinois Environmental Protection Agency and the Illinois Attorney General’s office to stop “trying to delay” resolution of the legal actions pending in court over the state’s decision earlier this year to use an emergency order to shutter Sterigenics’ suburban plant.

“Their strategy is to refuse to appear for depositions as subpoenaed and noticed and to refuse … to produce key documents in an even remotely timely fashion,” Sterigenics said. “Their bald-faced efforts at delay and obfuscation should not be permitted by this Court.”

The filing comes amid the latest flurry of activity in the lawsuits pending over emissions of ethylene oxide (EO) gas released from Sterigenics’ facility.

Illinois Gov. JB Pritzker

The legal matters have persisted since last fall, when then-Illinois Attorney General Lisa Madigan and DuPage County State’s Attorney Robert Berlin filed suit in DuPage County court against Sterigenics, asking a judge to essentially prohibit Sterigenics from using EO in its operations.

The state actions relied heavily on data and reports issued by the U.S. EPA and the federal Agency for Toxic Substances and Disease Registry, which claimed to show a sharply elevated cancer risk for people in and around Willowbrook. An ATSDR report linked that elevated risk to EO emissions from Sterigenics.

Sterigenics has contested the report’s conclusions, but the report generated a large amount of news coverage and a large public outcry, resulting in heavy pressure on Prtizker to find some way to act against Sterigenics. In mid-February, shortly after becoming governor, Pritzker’s IEPA slapped a so-called “seal order” on Sterigenics, ordering them to stop using EO, effectively shutting down the plant.

Sterigenics has said the EO is essential to its method of sterilizing surgical instruments, such as hypodermic needles, and medical devices, including implants. The medical device industry and the U.S. Food and Drug Administration have also expressed concern over the shutdown, noting alternative sterilization methods using heat and radiation can weaken device materials and compromise their effectiveness. Shutting down EO sterilization plants, the industry has warned, would lead to potential shortages of key devices and raise infection risks in American hospitals.

Sterigenics responded to the seal order by suing the state, arguing the state’s actions, including the Attorney General’s lawsuit and the IEPA’s seal order, represent a thinly veiled attempt by state officials to sidestep federal law, which generally governs the use of substances like EO.

Federal judges declined to take up the cases, and ruled they belong in DuPage County court.

With the litigation continuing, Sterigenics said it has filed a range of document requests from the state, demanding to see written materials and communications Pritzker and other state officials may have relied upon in imposing the emergency order.

According to the May 24 motion, those document requests included those regarding state discussions concerning the “alleged carcinogenic properties” of EO; regarding how state officials decided to impose the seal order; and how emissions testing and air testing was conducted and how results were handled, including “all evidence of any irregularities or tampering with any air sampling, monitoring, or modeling relating to ethylene oxide in Willowbrook.”

Sterigenics further requested “all communications regarding Sterigenics” or EO involving the IEPA and “any other person or entity, including” federal agencies, Pritzker and other state elected officials, DuPage County officials, village of Willowbrook officials and “the news media, members of the group commonly known as Stop Sterigenics, or other community members.”

To date, Sterigenics said, the state has only responded with “a smattering of documents … consisting, to a significant degree, of innocuous materials, such as newspaper articles,” which Sterigenics asserted “could not possibly support the drastic action (state officials) have taken and propose to take against the Willowbrook facility.”

Sterigenics said the state has requested to be allowed to wait until August to respond to the document production requests, a request Sterigenics called “absurd.”

State officials, Sterigenics said, “in their public statements and court filings, identified this as a matter of utmost urgency. They should treat it as such.”

Further, Sterigenics has also asked the court to order the state to allow Sterigenics to question state officials, including IEPA Director John Kim, under oath in sworn depositions.

Sterigenics said the state has objected to the depositions thus far, claiming because Sterigenics has filed its lawsuit and the state doesn’t believe the officials who issued the orders shutting down the plant should be made to testify in both the lawsuit brought by the state of Illinois and the lawsuit Sterigenics brought in response to the state’s emergency action.

“… This is a ‘problem’ of the IEPA and Kim’s own making – if they had not taken the extraordinary step of attempting to divest the courts of jurisdiction over this matter by issuing their baseless and unlawful Seal Order, there would only be one lawsuit,” Sterigenics said in its filing. “They cannot now use their highly improper conduct to prevent Kim and IEPA from being questioned under oath by Sterigenics as soon as possible.”

Sterigenics said the state’s decision to attempt to now slow-walk the litigation through the courts, after initially arguing the courts should act quickly, demonstrates “that they are afraid that the truth will come out regarding their baseless and wrongful actions.”

State officials “have called this tune,” Sterigenics said. “It is time for them to pay the piper.”

Sterigenics is represented in the action by attorneys Maja C. Eaton, Gerard D. Kelly and others with the firm of Sidley Austin LLP, of Chicago.

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Circuit Court of Dupage County Illinois Environmental Protection Agency Sidley Austin LLP Sterigenics

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