Sterigenics Lawsuit Claims EPD’s Consent Order Violates Law



jen jordan(APN) ATLANTA — On September 09, 2019, State Sen. Jen Jordan (D-Atlanta) and two Cobb County residents, Todd Smith and Kim Baynes, sued the Georgia Department of Natural Resources, Environmental Protection Division for entering into a Consent Order with the Sterigenics Plant in Smyrna, Georgia, which they say was unlawful.


Sen. Jordan and the plaintiffs argue that the EPD did not follow its own rules that require notice to affected residents so they may have the opportunity to comment on the proposed Consent Order.


As previously reported by Atlanta Progressive News, EPD and Sterigenics entered into a Consent Order on August 07, 2019, following revelations in July 2019 about unsafe levels of a toxic, cancer-causing chemical called ethylene oxide, in the air surrounding the Sterigenics Plant.


Sterigenics uses ethylene oxide to sterilize medical equipment that is then purchased by hospitals all over the country.


In late 2016, the U.S. Environmental Protection Agency revised its guidance regarding Ethylene Oxide, after a ten year study, to reflect the pollutant as a “known human carcinogen.”


However, until August 2019, Sterigenics had been allowed to continue to operate under a permit issued by EPD in 2014 that allowed the company to emit Ethylene Oxide into the air, which had been based on EPA’s prior guidance about the carcinogenicity, or cancer-causing nature, of Ethylene Oxide.


The lawsuit claims that EPD violated its own rules promulgated under the Georgia Administrative Procedures Act, O.C.G.A. 50-13-1: specifically, Rule 391-1-3-.01, Public Participation in Enforcement of Environmental Statutes.


This rule states: “At the completion of the negotiation process required by O.C.G.A. § 12-2-2(c)(6) and before executing and issuing any administrative consent order which falls in any of the categories in (a) below, the Environmental Protection Division shall provide notice and opportunity to the public to comment on and provide information regarding the proposed issuance of such orders.” 


O.C.G.A. 12-2-2 sets forth the powers and responsibilities of the Georgia EPD.  Subsection (c)(6) requires the EPD Director to create an order whenever a violation of Georgia environmental law has occurred.


The Consent Order itself does not specify which law, if any, was violated by Sterigenics.


However, the Order does state that Condition 8.1 of the 2014 Sterigenics permit allows for the EPD to require a permit amendment when the agency finds it is in the best interests of protecting the health of the public.


Assuming the notice and comment rule applies here, the rule contains an exception for emergencies.  


“This chapter shall not apply to or delay emergency actions as determined by the director of the Environmental Protection Division, nor actions which will immediately address ongoing harmful releases into the environment…” the rule states.


Like so much fine print, the exception seems to taketh away the force of the notice and comment requirement because, if there weren’t a health and safety emergency, there would not be a proposed consent order in the first place.  In other words, the exception seems to swallow up most of the requirement.

Presumably, the State of Georgia will argue that the exception applied to the Sterigenics Consent Order.


APN reached out to Sen. Jordan regarding the lawsuit, but she was unable to participate in an interview at this time due to her schedule, according to her chief of staff.


According to the lawsuit, at least twenty households out of 101 households in the Olde Vinings Mill neighborhood have experienced a cancer diagnosis in recent years – a rate of nearly twenty percent of the households.


One of these twenty households is the household of Plaintiff Kim Baynes, who is suing on behalf of herself as well as her husband, Jim Baynes, who in 2017 was diagnosed with leukemia and who died in 2018.


The Sterigenics episode has exposed many gaps in law and policy at the state and federal levels.


First, the reclassification of Ethylene Oxide by the EPA in 2016 did not appear to trigger an automatic reassessment of existing permits that were based on the EPA’s previous guidance on the pollutant.


Second, there does not appear to have been a meaningful requirement for notice to impacted residents regarding the reclassification of Ethylene Oxide nor regarding the heightened levels of the pollutant in census tracts in Smyrna near the plant.


Third, it appears that there were cleaner technologies available to Sterigenics that they chose not to use, in order to save money, until they were approached by the EPD regarding the proposed Consent Order.  In other words, the existing license did not require the adoption of new technologies to reduce pollution as they became available.


Fourth, as noted above, the exceptions to the notice and comment requirement for EPD informal adjudications appear to be too broad.


(END / Copyright Atlanta Progressive News / 2019)


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