Common Ground Found in Attempt to Limit Release of Ethylene Oxide Used for Sterilization

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In a rare showing of bipartisanship before the mid-term elections, Illinois Attorney General Lisa Madigan, a Democrat, and Robert Berlin, a Republican State’s Attorney for DuPage County, filed a lawsuit seeking to place limits on emissions of ethylene oxide from a plant owned by Sterigenics U.S., LLC. The lawsuit alleges that the plant has released dangerous levels of the gas for over a decade. Ethylene oxide is a potent gas used to sterilize medical instruments, pharmaceutical drugs and food.

“We are alleging that since at least 2006, through July of this year, the defendant, Sterigenics U.S., LLC, allowed the release of ethylene oxide gas into the atmosphere dangerously close to a densely populated residential area with nearly 20,000 people living within one mile of the alleged release. The issue of clean air is not negotiable,” Mr. Berlin said in a statement.

“For too long, Sterigenics emitted a dangerous, toxic chemical into the air putting the public’s health at risk,” Attorney General Madigan said in a statement. “In addition to filing our lawsuit, I urge the General Assembly to pass legislation to ban or greatly restrict the use of ethylene oxide in Illinois. I appreciate State’s Attorney Berlin’s assistance in protecting the community and the environment.”

The lawsuit, filed in DuPage County Circuit Court, alleges that, while annual emissions from the facility have declined during the past 25 years, the facility has released more than 254,000 pounds of ethylene oxide between 1993 and 2017. The lawsuit also claims that prior to July 2018, the facility released ethylene oxide from vents directly into the air.

The lawsuit is based on state laws and regulations enacted after the adoption of the 1970 Illinois Constitution, which includes a clause establishing a right to a healthy environment. Under those laws, it is the state’s responsibility to “maintain a healthful environment for the benefit of this and future generations.”

At least three other lawsuits have now been filed against Sterigenics. Susan Kamuda sued Sterigenics in September.

“I was diagnosed with breast cancer 10 years ago,” Ms. Kamuda stated. Ms. Kamuda added that she does not have a family history of the disease.

As we previously reported, the US EPA released a report in August stating that residents and workers in the area near the Sterigenics facility have been exposed to elevated airborne ethylene oxide concentrations.

Sterigenics released a statement defending the facility.

“Unfortunately, the community has been exposed to a lot of inaccurate and misinterpreted information and we are committed to getting the real facts to residents who, based on what they have been hearing and reading, are understandably concerned,” a Sterigenics spokesperson said in response to Ms. Kamuda’s lawsuit.

With an estimated 20,000 people living within one mile of the facility, these lawsuits are likely just the beginning, as plaintiff’s attorneys look to capitalize on the publicity and information contained within the suit filed by Attorney General Madigan and State Attorney Berlin. In addition to the high population density, the release period lasting over a decade will likely encourage inventive theories to get around statutes of limitations. To date, the federal government has not taken any action in regards to a suit against Sterigenics. While the state lawsuit may be a rare instance of bipartisanship, it is likely this matter could continue the trend of a widening gap between the policies of the EPA and individual states.