Source: https://www.lexology.com, November 13, 2018
By: Matlthew E. Cohn and William J. Anays, Greensfelder Hemker & Gale PC
The Illinois Attorney General and the DuPage County State’s Attorney have effectively implicated the Illinois Environmental Protection Agency as a responsible participant in causing air pollution in a case brought by the State against Sterigenics U.S., LLC. Contrary to custom, the Illinois Environmental Protection Agency did not refer an alleged violation to the Attorney General. In this instance, the Attorney General and the State’s Attorney, independent of the Illinois Environmental Protection Agency, alleged that Sterigenics emitted toxic gas into the atmosphere in violation of the Illinois Environmental Protection Act, even though the Illinois Environmental Protection Agency had issued Sterigenics a permit to emit up to 18.2 tons of ethylene oxide gas each year — and Sterigenics was not alleged to have exceeded that limit. Remarkably, the State is using the air permit as evidence against Sterigenics, even though there was no exceedance. What happened to the permit shield? Is applying for a permit now an admission of liability?
In a complaint filed in the DuPage County Circuit Court on October 30, 2018, the State alleged that emissions of ethylene oxide gas from a sterilization facility operated by Sterigenics in Willowbrook has endangered the health and safety of the public. The two-count complaint alleges that by emitting ethylene oxide gas in compliance with the permit, Sterigenics (1) caused, threatened or allowed air pollution in violation of the Illinois Environmental Protection Act and (2) created a public nuisance.
Paragraph 59 of the complaint is a most remarkable allegation:
The Defendant’s allowable emissions of approximately 18.2 tons (36,400 pounds) per year of [ethylene oxide gas], a known human carcinogen, into the atmosphere near residences and places of business (a) threaten to injure the health of people living, attending school, recreating, working, and shopping near the Source, (b) have caused fear in the community due to the threat to public health, and (c) interfere with the enjoyment and use of their homes and work places, and therefore constitutes “air pollution” as that term is defined in … the [Illinois Environmental Protection] Act….
Note that allowable emissions are alleged, and not actual emissions or emissions in excess of the permit. The State alleged that when the Illinois Environmental Protection Agency issued Sterigenics a permit authorizing Sterigenics to emit up to 18.2 tons of ethylene oxide gas each year, it gave Sterigenics authority to put people at risk. The State alleged that the Illinois Environmental Protection Agency allowed Sterigenics to pollute in a way that was harmful, threatening, caused fear, and interfered in the comfort of the community surrounding the Sterigenics facility. Incredibly, the State alleged also that because Sterigenics operated in compliance with the permit, Sterigenics actually violated the Illinois Environmental Protection Act. According to the State, the Illinois Environmental Protection Agency’s permit, and Sterigenics’ compliance with it, is evidence of a statutory violation under Illinois law.
The second count of the complaint is no less remarkable. The State alleged that by emitting ethylene oxide gas as permitted, and by complying with the permit, Sterigenics caused a public nuisance. It goes without saying that the purpose of the air permit program is to prevent a public nuisance from occurring in the first place. Regardless, the State has alleged that the permit issued to Sterigenics, and Sterigenics’ compliance with it, is evidence of harm — a public nuisance.
Often in environmental tort or statutory citizen suit cases initiated by a plaintiff against an owner or operator of an industrial source or operation in Illinois, a defendant will point to its compliance with an environmental permit, or its cooperation with a regulatory program, or an agreement with the Illinois Environmental Protection Agency, as evidence that the relief sought by the plaintiff is without merit. A defendant will seek a dismissal of the plaintiff’s case by arguing mootness or abstention. The plaintiff in turn will argue that the Illinois Environmental Protection Agency has not provided the protection it needs, or has not addressed the environmental concern adequately. With scrutiny of the facts generated from the Illinois Environmental Protection Agency’s records, and sometimes with experts of its own, the plaintiff will argue that the defendant’s cooperation with the Illinois Environmental Protection Agency is not a defense at all, but is actually evidence of the harm alleged. With these types of tort and citizen suit cases, the arguments one way or another are uniquely bound up with the law and facts of each particular circumstance and environmental matter at hand. We never expected the State of Illinois to support what plaintiffs have been arguing — that its own environmental agency issues permits and authorizes environmental activity offering no protection to the public from exposure to harmful pollutants, and no protection to a compliant permittee.
The remedy we expected in the Sterigenics case was a re-opening of the permitting process, and the ultimate issuance of a revised permit with a lower allowable emissions threshold for ethylene oxide gas. We did not expect State-initiated statutory enforcement and tort litigation. If this is the new model of enforcement, can anyone — the public or permittees — ever rely on the Illinois Environmental Protection Agency for protection by compliance with the law?
Under the circumstances, an amendment to the air permit is likely, as is an agreed dismissal of the State’s case against Sterigenics, but given the State’s strategy in this case and the factual allegations, we also expect years of private litigation against Sterigenics.