By JERRY NOWICKI
Capitol News Illinois
SPRINGFIELD – A group of suburban Republican lawmakers are calling on state and local officials to reverse course on a consent order that would allow a sterilization company linked to increased cancer rates to reopen.
Illinois Attorney General Kwame Raoul and DuPage County State’s Attorney Robert Berlin on Wednesday filed a motion to enter a consent order with Sterigenics, a medical supply sterilization company in the suburb of Willowbrook.
In August 2018, the Agency for Toxic Substances and Disease Registry, a federal agency within the U.S. Department of Health and Human Services, reported in a letter there was an “elevated cancer risk” for anyone who lives near or works in the facility.
Next Wednesday, a judge will decide if the consent order can move forward, lifting an existing seal order which was signed by the Illinois Environmental Protection Agency in February 2019 to prevent Sterigenics from operating.
Per the terms of the agreement filed Wednesday, Sterigenics will remain under the terms of that seal order until the company installs equipment to reduce emissions of cancer-causing ethylene oxide to allowable limits that were signed into law by Gov. J.B. Pritzker last month. The installation of that equipment would require approval of a building permit from the IEPA.
In June, Pritzker signed the Matt Haller act, Senate Bill 1852, which prohibits ethylene oxide sterilization facilities from operating in Illinois unless they capture 100 percent of all ethylene oxide emissions within the facility and reduce ethylene oxide emissions to 0.2 parts per million. It also mandates emissions and air quality testing that, if failed, would require immediate cessation of any sterilization procedures.
“The proposed consent order, combined with the strict regulations in the new law signed last month, will enable the state to act quickly to hold Sterigenics accountable for violating Illinois’ emissions limits,” Raoul said in a statement.
The attorney general’s office characterized the consent order as “a stronger legal tool” than the current seal order, which is being challenged in the courts.
Under the proposed consent order, ethylene oxide emissions at the facility would decrease to 85 pounds per year from 2,840 to 7,340 pounds per year from 2006 to 2018. The settlement also creates fines of $400 to $1,000 per day if Sterigenics breaches the contract, and it authorizes the court to hold Sterigenics in contempt of court in such situations.
But Sen. John Curran of Downers Grove, Rep. Deanne Mazzochi of Elmhurst and Illinois House Minority Leader Jim Durkin of Western Springs – all suburban Republicans who helped pass Senate Bill 1852 and have been outspoken critics of Sterigenics – each agreed the settlement was too conciliatory to the company, which they believe should be prohibited from using ethylene oxide in the state.
“It's troubling that they're in a rush to lock into the settlement agreement that, number one, Sterigenics admits no fault or wrongdoing when there is evidence contrary to that,” Curran said in a phone interview.
Curran also objected to the consent order’s lack of any punitive fines for Sterigenics. He said a $300,000 escrow payment required of Sterigenics to fund projects “designed to benefit the environment in the State of Illinois” was too small and should have been classified as a fine.
The suburban lawmakers also agreed that local voices were left out of the negotiation process.
“They (Sterigenics) don't deserve the any convenient path to begin operations again,” Durkin said in a phone interview, noting he would prefer the attorney general to defend the seal order preventing Sterigenics’ operation.
“Let a court of law make that decision,” he added. “I’m willing to roll the dice on that. This is not something that we should be negotiating. … We should fight it tooth and nail, and so should the state of Illinois. And I wish that the regulators and the people making these decisions who don't live in my area would give some weight to the legislators who live there. …”
Curran noted the filing came one day before a judge was set to consider a motion from four local communities to be added as a party in the litigation. Whether those municipalities – Burr Ridge, Hinsdale, Willowbrook and Darien – can be added as a party to the case will be decided when the judge rules on the consent order next week.
When that hearing convenes, Mazzochi said in a statement, she plans to file a “friend of the court” brief to discuss the legislative intent behind Senate Bill 1852, which she said should have kept Sterigenics closed.
Pritzker’s office said the consent order creates “detailed enforceable mandates” to ensure “swift judicial oversight” of Sterigenics.
“The administration made it clear to members of the General Assembly that Governor Pritzker would be willing to sign any measure, up to and including a ban, on the use of ethylene oxide in the state of Illinois,” the governor’s office said in a statement. “Members of the General Assembly drafted legislation that did not prohibit the use of ethylene oxide but did create the most stringent regulations around its use in the country. The Illinois EPA will monitor Sterigenics to ensure they operate within the stringent framework lawmakers created in their legislation.”
Curran – who has filed two separate ethylene oxide bans in his time in the General Assembly – said he was happy to hear of the governor’s commitment to signing such a proposal.
“I am very happy to see that he finally does support a ban, and I'm going to continue to pursue that,” he said.
Releases from Pritzker and Raoul
Gov. J.B. Pritzker and Attorney General Kwame Raoul released the following statements on the consent order Thursday evening.
Statement from Governor JB Pritzker: “Leader Durkin and other local leaders in the General Assembly were the drafters of Senate Bill 1852, the legislation that imposes the strongest controls on ethylene oxide in the nation. My office made it clear to the legislators that I was – and remain – willing to sign the strongest possible legislation that they can pass. I share the community’s concerns and their health and safety is my top priority. This morning, I spoke with Leader Durkin and I emphasized, based on conversations with the Attorney General, the potential danger to the health and safety of the residents of Willowbrook involved in further litigation, which would not have achieved the same level of protection as the consent order. Leader Durkin seemed to indicate that there were deficiencies in the legislation written by himself and other local leaders in the General Assembly that helped inform the consent order. At this time, the only option remaining is for Leader Durkin to propose new legislation that will fix the perceived shortcomings of the legislation that he sponsored and worked to pass. I made it clear to Leader Durkin this morning that, if he requests it, I will call a special session of the legislature to allow for an immediate vote on a bill that is constitutional and will fix the perceived shortcomings of the legislation he previously sponsored.”
Statement from Attorney General Kwame Raoul: “As Attorney General, it is my responsibility to enforce laws passed by the Illinois General Assembly, and I applaud Leader Durkin, Rep. Mazzochi, Sen. Curran, and all the lawmakers who worked diligently to craft and pass the strict standards in Senate Bill 1852. The consent order my office filed jointly with the DuPage County State’s Attorney Bob Berlin imposes every emissions reduction requirement of the new law and goes further. Under the new law, emissions reduction requirements are not effective until Dec. 18 – under the consent order, Sterigenics will not be able to reopen until it is able to meet those requirements. The suggestion that continuing the litigation over the seal order would provide greater protection to residents is inaccurate and uninformed. The very real risk that continued litigation could result in Sterigenics being able to reopen before installing any new emissions controls – while still operating under its existing permit that authorized it to emit 36,400 pounds of EtO per year – was unacceptable. The new law imposes new certification requirements, but, through litigation, Sterigenics attempted to exploit a loophole in the law to avoid those requirements. Through the consent order, we eliminated that loophole. Sterigenics will now always be subject to the certification requirements that area legislators insisted be included in the law. The final result is that, combined with the Matt Haller Act, the consent order ensures that Sterigenics will not reopen unless and until it installs new emissions controls that will reduce its emissions to no more than 85 pounds of EtO per year. Our office has met with legislators, local officials, and representatives from the community to explain how the consent order implements current law and provides additional enforcement tools, and we will continue to address questions.”