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Lawmakers file brief to challenge Sterigenics consent order

The goal of the brief is to provide more information about the legislative intent behind a new law which, the lawmakers argue, is incorrectly being used as a vehicle by state and DuPage County officials to allow Sterigenics to reopen despite its history of emitting massive amounts of cancer-causing ethylene oxide.

House Republican Leader Jim Durkin, left; Illinois Attorney General Kwame Raoul, right.
House Republican Leader Jim Durkin, left; Illinois Attorney General Kwame Raoul, right.
Rich Hein/Chicago Sun-Times

SPRINGFIELD – Three Republican lawmakers who represent the west suburban Willowbrook area filed a court brief Tuesday to argue against a consent order that would allow a medical supply sterilization company linked to increased cancer rates to conditionally reopen.

State Sen. John Curran of Downers Grove, Rep. Jim Durkin of Western Springs and Rep. Deanne Mazzochi of Elmhurst filed the amicus brief in DuPage County Circuit Court one day before a judge is scheduled to rule on whether a settlement agreement between the state and the medical supply sterilization company Sterigenics is allowed to move forward.

The goal of the brief is to provide more information about the legislative intent behind a new law which, the lawmakers argue, is incorrectly being used as a vehicle by state and DuPage County officials to allow Sterigenics to reopen despite its history of emitting massive amounts of cancer-causing ethylene oxide.

“Sterigenics has lost the right to operate in our community,” Durkin, who is the Republican minority leader in the Illinois House, said in a statement. “This brief lays out the steps taken by the General Assembly, through The Matt Haller Act, to ensure corporate polluters like Sterigenics can’t harm any more of our state’s residents.”

Sterigenics has been under a seal order from the Illinois Environmental Protection Agency since February, which has prevented the company from operating.

The pending consent order, filed by Illinois Attorney General Kwame Raoul and DuPage County State’s Attorney Robert Berlin, would lift that seal order and allow Sterigenics to resume ethylene oxide use if the company installs equipment that reduces emissions enough to comply with new standards created in Senate Bill 1852, known as the Matt Haller Act.

Raoul said his office “vigorously defended” the seal order while the new legislation was being written to reduce allowable ethylene oxide emissions. As passed, however, he said it does not prevent Sterigenics from operating.

“The Legislature passed, and Gov. (J.B.) Pritzker signed, stringent regulations requiring facilities that generate ethylene oxide emissions to reduce emissions from each exhaust point by 99.9 percent. Under the law, facilities – including Sterigenics – that comply with the new law can operate in the state of Illinois,” he said in a statement. “The law passed just this spring by Leader Durkin, Sen. Curran and Rep. Mazzochi does include the strongest regulations of ethylene oxide emissions in the nation. However, it does not ban the use of ethylene oxide in Illinois.”

The brief filed Tuesday, however, focuses on Subsection G of SB 1852, which prevents companies under a seal order from using ethylene oxide in their sterilization process in the future unless certain conditions are met.

Those conditions are that the company must provide documentation that ethylene oxide is the only available method to completely sterilize or fumigate their products, and the company must certify with the state that it has technology in place to produce “the greatest reduction in ethylene oxide emissions currently available.”

That subsection also specifies that if the findings of a seal order “are found to be without merit by a court of competent jurisdiction,” the company would no longer be subject to the conditions.

In their brief filed Tuesday, the lawmakers said Sterigenics should not be released from the seal order without having the merits of the seal order decided by the courts.

“This ‘Seal Order’ language was essential given reports alleging that Sterigenics released ethylene oxide into the air despite promises that its equipment adequately captured emissions,” according to the brief.

“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 statute does not allow the agency and litigants to ‘agree to disagree,’ or otherwise punt on the merits, as the attorney general seeks to do in the consent order here,” according to the brief.

Pritzker’s office, however, said the brief filed by the three Republicans reflects “a fundamental misstatement of the new state law which they drafted and sponsored.”

“The consent order not only explicitly requires the company to comply with the new law but actually includes provisions that are more stringent than the law by imposing additional conditions on Sterigenics to protect the community. Without the consent order, Sterigenics would fight to reopen even before the strongest ethylene oxide sterilization regulations in the nation take effect,” Pritzker spokesperson Jordan Abudayyeh said in a statement.