A DuPage County judge has decided to allow a group of suburban communities the opportunity to weigh in on an agreement between Illinois state officials and medical device sterilization company Sterigenics, keeping in place at least until September a state order that has shuttered Sterigenics’ Willowbrook plant for five months.
However, while proceedings in court continue to play out, the company and the state’s environmental agency also continue to discuss the permits Sterigenics would need to reopen the controversy-plagued facility.
On July 24, DuPage County Circuit Judge Paul Fullerton granted the request from the municipalities, including the villages of Willowbrook, Burr Ridge and Hinsdale and the city of Darien, to intervene in the regulatory enforcement legal action brought by the Illinois Attorney General’s office last fall.
Illinois Attorney General Kwame Raoul
That permission gives the local community governments the chance to argue against the agreement to create a path for Sterigenics to reopen its Willowbrook plant.
The judge ordered the municipalities to file their legal briefs by the end of August. Sterigenics and the state then would be given time to file replies.
The judge could rule on the matter on Sept. 6.
At the same time, however, representatives of Sterigenics and the Illinois Attorney General’s office said the judge’s decision has no bearing on ongoing talks between Sterigenics and the Illinois Environmental Protection Agency over the company’s request for new permits to install new emissions controls to satisfy strict new state standards.
Sterigenics formally applied for those permits from the IEPA on June 25.
Sterigenics’ facility has been closed since February, when the IEPA, under Gov. JB Pritzker, slapped a so-called “seal order” on the plant, forbidding them from using the ethylene oxide gas that is essential to the company’s procedures for sterilizing large quantities of medical and surgical devices and equipment.
That order followed a months-long buildup of political pressure from many in Willowbrook and surrounding communities, who demanded the state shut down the plant over concerns EO emissions from the Sterigenics facility had elevated cancer risks for people in and around Willowbrook.
That concern stemmed from reports issued last summer by the U.S. EPA and the federal Agency for Toxic Substances and Disease Registry, which reported data purportedly establishing the link.
In the fall, the Illinois Attorney General’s office and the DuPage County State’s Attorney sued Sterigenics, seeking a court order shuttering Sterigenics’ facility. The action was continued after current Attorney General Kwame Raoul assumed office earlier this year.
While conceding the company at no point exceeded the EO emissions limits imposed by its state permit, the state attorneys argued the company still violated state pollution laws by creating a “public nuisance” by emitting EO at all.
Sterigenics has contested the federal reports’ findings and the state lawsuit. It has also challenged the seal order, asserting the governor overstepped his constitutional authority in imposing it.
As the battle played out in court, Illinois state lawmakers changed the state’s rules governing EO emissions, overwhelmingly imposing the strictest limits on EO in the U.S. Pritzker signed the law in June.
About a month later, the Illinois Attorney General’s office and Sterigenics announced a deal to end the lawsuits and create a path for the Willowbrook facility to reopen, through the installation of IEPA-approved emissions capture and control technology to meet the new state standards.
Raoul’s office has said the agreement – to be entered in court in a document known as a “consent order” – would obligate Sterigenics to abide by the new standards of the Illinois law, even if the company could somehow prove the state had wrongly ordered their Willowbrook plant closed.
The attorney general said the consent order would prohibit the company from seeking such a determination from a judge.
The consent order, however, has generated a storm of criticism from activists, local state lawmakers and others, who argue Sterigenics should never be allowed to reopen.
Three state lawmakers argued as much in an amicus, or “friend-of-the-court” brief, filed on July 23 in DuPage County court, asserting they believed the state law had been written specifically to target Sterigenics and forbidding the Attorney General or any other state legal representative from negotiating an agreement to lift the IEPA seal order.
The consent order will need to be approved by the judge.
Following the judge’s ruling, the Illinois Attorney General’s Office and DuPage County State’s Attorney’s Office issued a joint statement, stressing their power to punish Sterigenics is limited by the law.
“We have never opposed the villages’ motions to intervene because we recognize the need for the impacted communities to be heard, and we welcome their input in this process. Throughout this litigation, we have regularly communicated with the leadership of the affected communities, and we are committed to using all legal authority to protect the residents of Willowbrook and the surrounding communities,” they said in their statement.
“Our authority is defined by the laws passed by the General Assembly, which we are obligated to enforce. Although the new law does not authorize the permanent closure of Sterigenics if it can comply with the stringent requirements imposed by the General Assembly, the proposed consent order ensures that Sterigenics can operate only if it complies with those requirements.”
As the parties await the judges’ decision on the consent order, Sterigenics said it is moving forward with the IEPA permit process, which includes opportunities for public comment.
Sterigenics must also ultimately obtain a construction permit from the village of Willowbrook, as well, to complete any work on its plant.
“We are confident that the Consent Order will be approved in due course,” Sterigenics said in a prepared statement following the July 24 court action. “Our Willowbrook operations have consistently complied with and outperformed the State’s requirements and we are committed to abiding by the new requirements established by the State. Sterigenics will continue to take the necessary steps to resume operations at Willowbrook and remains committed to acting in the interest of the community, our employees, our customers and the patients and hospitals we serve every day.”