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Medical Sterilizer Sues Over Limits on Using Ethylene Oxide (1)

March 30, 2020, 5:24 PMUpdated: March 30, 2020, 7:25 PM

A medical sterilizer company is suing Georgia’s Cobb County for refusing to allow it to resume full sterilization of medical equipment using ethylene oxide, equipment the company say is needed to help fight the coronavirus pandemic.

Sterigenics U.S. LLC filed suit Monday in the U.S. District Court for the Northern District of Georgia, alleging irreparable harm to the company.

At issue was Cobb County’s March 25 order that said Sterigenics could resume its shuttered business, but for just 21 days, to use the carcinogenic ethylene oxide to sterilize personal protective gear likes masks, gloves, and gowns to ward off Covid-19, the disease caused by the novel coronavirus.

The county order does not permit Sterigenics to sterilize IV sets, catheters, and syringes, as the company wanted.

The facility, which was closed in August, opened March 25 but must close again by April 15, which corresponds with the end of the emergency declaration by the county. This could change again to fall in line with President Donald Trump’s directives to extend the emergency to the end of April.

The company said Cobb County’s actions are “preventing millions of essential and lifesaving medical products Sterigenics’ facility is responsible for sterilizing from reaching healthcare providers who need them for patient care.”

Closed Since August

The Sterigenics plant had been closed since August as the company installs pollution controls to reduce fugitive emissions of ethylene oxide. Cobb County prevented a full reopening of the plant, pending a third-party report that hasn’t come out yet. The county said the plant wasn’t meeting the terms of its occupancy permits, including fire code requirements.

Sterigenics alleged Monday that Cobb County is illegally keeping the plant closed after April 15 by “by manufacturing a sham claim that Sterigenics needs a new ‘certificate of occupancy’ as a pretext to close the facility for political purposes, in response to activists’ unfounded environmental claims the County and its officials have no authority to regulate.”

Mike Boyce, the Republican chairman of the Cobb County Board of Commissioners, continued to stand by the county’s order.

“The Chairman indicates he stands by his recently released order on Sterigenics. Beyond that because we are dealing with pending litigation, we can have no further comment at this time,” Ross Cavitt, the county spokesman, said in an email Monday.

The Georgia-chapter of the citizens group Stop Sterigenics called the company’s action “appalling.”

The group isn’t directly named in the lawsuit, but has lobbied at the local and state level to keep the facility shuttered until the fugitive releases of ethylene oxide stop. The community near the plant includes homes and a daycare facility for children.

“We find it appalling that they would choose to prioritize a permanent reopening instead of focusing on actually helping during the Covid-19 crisis,” Janet Rau, the chapter’s president, said in an interview. “They have been given permission to operate temporarily with a focus on items that are needed to fight the pandemic. Instead, Sterigenics is now occupying county resources that are desperately needed elsewhere using the current crisis to leverage the pandemic to their advantage.”

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Cause of Action: Uniform Declaratory Judgment Act and Federal Rule of Civil Procedure

Relief: Declaratory judgment, preliminary injunction and temporary restraining order enjoining county’s actions, attorneys’ fees, and costs.

Response: Cobb County chairman said he stands by the order.

Attorneys: Attorneys for Sterigenics filing the complaint are W. Clay Massey, Daniel F. Diffley, Kathlyn C. Klorfein and Thomas P. Grantham for the Atlanta office of Alston & Bird LLP.

The case is Sterigenics U.S. LLC v. Cobb County, GA, N.D. Ga., No. 1:20-cv-01382, 3/30/20.

(Updating with reaction from citizen-led nonprofit Stop Sterigenics. )

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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