Judge denies Cobb’s motion to dismiss Sterigenics lawsuit

March 26, 2020 Smyrna - Aerial view shows The Sterigenics plant (foreground) in Smyrna on Thursday, March 26, 2020. Cobb County Commission Chairman Mike Boyce signed an emergency authorization Wednesday, allowing Sterigenics to reopen on a “limited contingency basis.” The plant had been closed since August pending the re-issuance of local and state permits. (Hyosub Shin / Hyosub.Shin@ajc.com)
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March 26, 2020 Smyrna - Aerial view shows The Sterigenics plant (foreground) in Smyrna on Thursday, March 26, 2020. Cobb County Commission Chairman Mike Boyce signed an emergency authorization Wednesday, allowing Sterigenics to reopen on a “limited contingency basis.” The plant had been closed since August pending the re-issuance of local and state permits. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

A judge has denied Cobb County’s request to dismiss a federal lawsuit filed by a medical sterilizing company over permitting issues, clearing the way for the case to move forward.

Sterigenics, which operates a plant near Smyrna, has been under public scrutiny since last year when its' emissions of the carcinogenic gas ethylene oxide was flagged in a federal report on elevated cancer risk.

Judge William M. Ray II acknowledged in his opening remarks the intense interest of the community, but clarified that the scope of the present case did not include environmental or health concerns.

“The issue that I have before me is not the issue of whether Sterigenics is complying with federal law,” he said. “The issue is whether or not Cobb County’s efforts and orders as it related to this plant in Cobb County is constitutionally permitted as a regulation, or as an exercise of its regulatory power of land use. That’s it.”

The facility has been operational since April after shutting down for a few months to install new pollution controls.

But the county says the company needs a new “high hazard industrial” certificate of occupancy, which requires stricter fire safety measures, in order to reopen permanently. In addition to being a carcinogen, ethylene oxide is highly flammable.

Currently, Sterigenics is operating pursuant to a consent order until the lawsuit is resolved.

The company’s lawyers argued this week that the requirement of a new certificate of occupancy is an excuse to shut it down, and that Cobb has no intention of granting such a certificate. A company spokesman declined to comment on the judge’s ruling.

“Since the early 1970s, nothing has changed and they have approved our occupancy and expansion there for decades,” the company’s attorney, Clay Massey, argued during a remote hearing Monday.

Elizabeth Monyak, representing Cobb County, said just because the facility should have been listed as high hazard industrial before, “That doesn’t keep us from doing it correctly in the future.”

Judge Ray described the legal issues at stake as “complicated” and deserving of a full hearing, and denied the county’s request to throw it out. He also appeared to issue a warning to Cobb, while saying he had not decided the case yet.

“It could be a major problem if the decisions that have been made have been made because of the political pressure, as opposed to legitimate regulatory interest,” Ray said. The judge also pushed back on the county’s interpretation of the local law governing permits.

A spokesman for Cobb said the county would not comment on the judge’s decision.

“I sincerely hope that the county is looking at the charges of ambiguity in our codes so that companies like Sterigenics can be prevented from rewriting rules to best suit their business practices, even when those practices potentially go against public safety,” said Janet Rau, who heads the grassroots group Stop Sterigenics and lives close to the plant.

Sterigenics is involved in several other, separate lawsuits. The company is suing the county’s board of tax assessors for lowering home values around the plant. Homeowners have also filed suit against the company over the reduction in their property values.

Sterigenics has been sued by dozens of workers and their families who allege they were sickened and several people died due to their exposure to ethylene oxide at a distribution center linked to the facility.

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