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Monday, August 19, 2019

State lawmakers: IL ethylene oxide law doesn't allow A/G to negotiate Sterigenics settlement

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By Jonathan Bilyk | Jul 23, 2019

Illinois House Republican Leader Jim Durkin

Acknowledging a new state law was written specifically to target one suburban medical device sterilization plant, a group of state lawmakers have asked a DuPage County judge to reject a deal negotiated between Illinois state officials and Sterigenics to allow the company’s Willowbrook plant potentially to reopen.

On July 23, Illinois House Republican Leader Jim Durkin (R-Western Springs) with State Rep. Deanne Mazzochi (R-Elmhurst) and State Sen. John Curran (R-Downers Grove) filed an amicus, or friend-of-the-court, brief in DuPage County Circuit Court, opposing the so-called consent order recently announced by Sterigenics and the state of Illinois, represented by Illinois Attorney General Kwame Raoul and DuPage County State’s Attorney Robert Berlin.

The brief centers on a new Illinois state law governing the use of the compound known as ethylene oxide.

Illinois Attorney General Kwame Raoul

Sterigenics has said EO is essential to its method of sterilizing surgical instruments, such as hypodermic needles, knee implants and surgical kits. EO is widely used to sterilize such key medical devices across the country, according to trade associations representing other sterilizers and medical device manufacturers.

They have said the use of EO is essential, as there is currently no substitute for sterilizing many of these devices in the quantities needed by hospitals and doctors without damaging the devices and their components.

Since February, however, Sterigenics’ Willowbrook plant has been closed, after the Illinois Environmental Protection Agency under Gov. JB Pritzker issued a so-called seal order, ordering the company to stop using EO.

That order followed months of political pressure from many in Willowbrook and surrounding communities, including Darien and Burr Ridge, who demanded the state shut down the plant over concerns EO emissions from the Sterigenics facility had elevated the cancer risk for people in and around Willowbrook.

That concern stemmed from the release of reports last summer from the U.S. EPA and the federal Agency for Toxic Substances and Disease Registry, which reported data purportedly establishing the link.

In response to the report and political pressure, former Illinois Attorney General Lisa Madigan and the DuPage County State’s Attorney’s office filed suit in DuPage County court, asking a judge to order Sterigenics closed. The action was continued after Raoul became attorney general earlier this year.

While conceding the company never exceeded the emissions limits imposed under its state-issued permit, the state attorneys argued the company still violated state pollution rules and state law by creating a “public nuisance” by emitting EO at all.

Sterigenics has contested the federal reports’ conclusions and the state lawsuit. It has also challenged the seal order in court, calling it illegal and unconstitutional. The company asserted the IEPA and the governor overstepped their authority in issuing the order.

However, this spring, Illinois state lawmakers overwhelmingly passed a new law imposing the strictest limits in the U.S. on EO emissions. Pritzker signed the law in June.

In the weeks since, Pritzker has publicly stated he would support a change in the law to permanently ban the use of EO in Illinois.

However, that language was not included in the new law. Rather, the law included language targeting any facilities under a seal order, by placing extra burdens on such sterilization plants. Sterigenics is the only facility in Illinois under seal order for its use of EO.

The language, referred to as “subsection g” of SB 1852, says any facility which was “[1] permitted to emit ethylene oxide [2] that has been subject to a seal order … is prohibited from using ethylene oxide for sterilization or fumigation purposes, unless … the facility can provide a certification to the (IEPA) by the supplier of a product to be sterilized or fumigated that ethylene oxide sterilization or fumigation is the only available method to completely sterilize or fumigate the product and … the Agency has certified that the facility’s emission control system uses technology that produces the greatest reduction in ethylene oxide emissions currently available.”

In the amicus brief, the state lawmakers assert that language was intentionally inserted into the law to ensure Sterigenics remained closed.

 “When (the law) was drafted; discussed in the House’s Energy and Environment committee; and ultimately approved, it was known to all parties that on February 15, 2019, the Illinois EPA had issued a seal order against the Sterigenics facility in Willowbrook to shut it down,” the lawmakers wrote in their brief.

“… This renders Sterigenics ‘prohibited from using ethylene oxide for sterilization or fumigation procedures,’” the lawmakers argued.

Last week, however, Raoul and Sterigenics announced they had reached a deal to end the court fight over the state’s lawsuit and Sterigenics’ lawsuit challenging the seal order.

However, the lawmakers assert the law’s seal order language prohibits the attorney general or state’s attorney from settling the litigation, prohibits the IEPA from lifting the seal order, and requires the state attorneys to defend the seal order in court, even if the seal order may have been “issued on shaky assertions.” They argue the law forbids Sterigenics from reopening unless the seal order is “found to be without merit by a court.”

“The legislative intent behind the subsection (g) language as-enacted was to ensure that a party ever subjected to a Seal Order was excused from the ethylene oxide prohibition absent a court of competent jurisdiction having ‘found’ that the allegations in the Seal Order were ‘without merit,’” the lawmakers wrote. “The statute does not allow the (IEPA) and litigants to ‘agree to disagree,’ or otherwise punt on the merits, as the Attorney General seeks to do in the Consent Order here.”

“… Legislators were not willing to let the (IEPA) (or the Illinois Attorney General, for that matter) have unfettered discretion to revoke or nullify a Seal Order once one issues (sic) to the exclusion of public interest considerations,” the lawmakers said.

Raoul’s office has said it believed the consent order improved on the law, by preventing Sterigenics from even continuing its challenge to the seal order. If Sterigenics had persuaded a judge to declare the seal order illegal or otherwise without merit, the attorney general said, the company could have more easily reopened.

A spokesperson for Sterigenics did not immediately reply to a request for comment.


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Organizations in this Story

Circuit Court of Dupage County Illinois Attorney General Illinois Environmental Protection Agency Illinois Governor J.B. Pritzker Illinois State Representative Deanne M. Mazzochi Illinois State Representative Jim Durkin Illinois State Senator John F. Curran Sterigenics

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