We previously examined the EPA’s increased activity with respect to Ethylene Oxide (EtO), which it considers a human carcinogen. Just as the EPA is increasing its attention to EtO, though, so, too, are several states experiencing an uptick in ethylene oxide litigation. Most notably, Delaware and Georgia have seen recent private (i.e., non-governmental) lawsuits against companies operating facilities that utilize EtO, with the lawsuit claims alleging that EtO caused the cancer in the plaintiffs.

Ethylene Oxide Litigation In Georgia

As we discussed in our last article, legislation proposed in 2020 would open up manufacturers in Georgia that use ethylene oxide to additional restrictions. House Bill 3 would require facilities seeking a permit to release more than 50 pounds of ethylene oxide annually to let the Georgia Environmental Protection Division (EPD) install electronic devices to continuously monitor those emissions and release the findings at least twice a year.  Also in 2020, Georgia passed a bill introduced in the state Senate requiring manufacturers that use ethylene oxide to report any waste spills or gas releases to the EPD within 24 hours. The director of the EPD then must post the information on the agency’s website.

Recent developments in Georgia bear further discussion. Neighbors of a Sterigenics sterilization plant in Cobb County allege that they have been exposed to carcinogenic levels of EtO, and are suing both Sterigenics and the landlord of the plant (Prologis First). In recent arguments to the court, the plaintiffs (numbering approximately 300) urged the court to deny Prologis’ summary judgment motion based on the argument that it is immune from liability because it is an “out-of-possession” landlord.

Prologis argues that in addition to its professed status as an out-of-possession landlord, there is no admissible evidence that EtO escaped from the roof and walls of the facility and caused the plaintiffs to develop cancer.  Prologis is now also advancing the argument that the plaintiffs cannot prove causation, as well as pointing to Sterigenics as the exclusive possessor of the facility and the entity responsible for its operations.  A key element of this litigation will be whether the plaintiffs can prove that any cancers they developed were caused by EtO emissions from the plant.

Ethylene Oxide Litigation In Delaware

In Delaware, a federal court last month weighed in as to whether or not Delaware tort law recognizes a viable cause of action based on fear of cancer resulting from EtO emissions, and held that it did not.

Judge Stephanos Bibas rejected a proposed class action suit filed in 2020 against chemical company Croda Inc. premised on the claims of some nearby residents that carcinogenic releases of EtO from a plant in South Wilmington caused them to suffer a fear of developing cancer.  The now rejected class action alleged that a November 2018 release of more than a ton of EtO from Croda’s Atlas Point plant near the Delaware River, which resulted in a seven hour shutdown of the I-295 Delaware Memorial bridge, caused the plaintiffs to fear an increased risk of cancer. Notably, the release also resulted in a fine by state environmental regulators of $246,000 plus $16,000 in costs.

Judge Bibas, in dismissing the suit without prejudice, held that the plaintiffs lacked standing because Delaware tort law does not recognize claims based on an increased fear of disease.  However, Judge Bibas also noted that the lead plaintiff and the class members could amend the complaint to the extent any of them were able to show any actual physical injury.  It remains to be seen whether the complaint will be amended to include claims of actual cancer development as opposed to just fear of cancer.

Analysis

Recent decisions on the state level cast doubt on the viability of claims based on fear of developing cancer from EtO releases, at least in certain states. We expect, however, that claims of actual development of cancer caused by EtO exposures will continue.  As we have stressed in prior reports, the best litigation outcome for a defendant is litigation that never happened in the first place.  Excessive levels of EtO emissions, whether by accident or otherwise, can lead to state and federal fines as well as private lawsuits.  Companies that either own or may have responsibility for facilities utilizing EtO must be vigilant about complying with all applicable regulations concerning emissions and strive to make sure that no excessive emissions occur.

CMBG3 Law LLC has represented clients in environmental and products liability matters for years, and we have predicted several emerging contaminants as financial and litigation risks before they came to fruition, including PFAS, glyphosate, talc and asbestos. We regularly consult with private equity, banking, and investment world firms to identify future risk potentials from portfolios under consideration. For more information about the risks that ethylene oxide may pose to your business, please contact David Goldman.