Lawsuit claims Augusta medical equipment sterilizer plant's emissions add to cancer risk

Kendall Patient Recovery, a medical equipment sterilizer near Augusta Regional Airport, is facing a lawsuit from more than 20 current and former Augusta residents. They claim that the plant released ethylene oxide – a carcinogenic gas – in excess levels, causing everything from breast cancer to miscarriages. 

"These individuals have been unknowingly inhaling ethylene oxide on a routine and continuous basis for decades," attorneys for the plaintiffs wrote in the initial complaint, filed in July of this year. "Now they are suffering from a variety of cancers, miscarriages, birth defects, and other life-altering health effects from their continuous exposure to ethylene oxide."

A typical example from the case is plaintiff Evelyn Armstrong, who, according to the suit, lived five and a half miles from the facility since 1989.

"Evelyn consistently … inhaled contaminated air in and around her home, her work and in the areas surrounding the KPR facility. As a result, Evelyn was diagnosed with breast cancer around 1999. At the time of her diagnosis, Evelyn did not have notice that her medical condition was wrongfully caused or that it was caused by the Defendant's emissions of ethylene oxide."

Attorneys for KPR filed to dismiss the case, charging that KPR never broke the law regarding the level of its emission, and that the complaint, which rests on the plaintiffs having lived near or worked in the plant and having health issues, does not actually establish that ethylene oxide from KPR was responsible for their illnesses, or indeed, that ethylene oxide was responsible at all.

"Plaintiffs rely on a speculative chain of possibilities to reach the unsupported conclusion that their alleged injuries are actually traceable to KPR’s conduct, rather than something else," attorneys for KPR wrote.

Attorneys for both the plaintiffs and defendants did not respond to requests for comment.

Most of the claims in the lawsuit are related to historical emission levels, which according to the complaint were significantly higher than they have been in recent years. Publicly available EPA data from the Toxic Release Inventory does show much higher quantities of released ethylene oxide from the facility, from over 4,000 pounds in 2009 to 94 pounds in 2020. 

Despite the fall off of emissions, some residents are concerned about the KPR plant and want it shut down. The Georgia Environmental Protection Division says the plant is meeting all the expectations for a similar plant. In 2014, when the US Environmental Protection Agency put out its National Air Toxic Assessment, two sterilizer sites in Georgia – in Covington and Smyrna – were flagged as potentially having issues, the KPR plant was not.

"The risk at KPR was lower than the other, and that's due to several reasons, they use a lot less ethylene oxide, they recycle it, and their process just allows less opportunity for fugitive emissions to occur within the facility," said Karen Hays, chief of the Air Protection Branch for the Georgia Environmental Protection Division. "The risk at some of the (other sites) in the state are now down to levels that KPR already was at."

Measuring cancer risk

Cancer risk is measured in amounts of chemical sufficient to create a one in a million additional risk of cancer – that is, among a million people exposed to given conditions over a lifetime of 70 years, one would be expected to contract cancer from the exposure. That risk is added on to the underlying risk that a person will develop cancer for reasons other than air pollution.

The complaint against KPR relies in part on the NATA, alleging that the census tract that KPR is located in has a 64 in a million risk of developing cancer. The census tract identified, 104, does have the highest cancer risk in Richmond County – the average is about 32 in a million – but according to a GIS analysis by The Augusta Chronicle and a search of a public address to census tract tool the KPR facility at 1430 Marvin Griffin road is located in census tract 106, which has a cancer risk of about 46. In the motion to dismiss, attorneys for KPR say that plaintiffs are not claiming they live in the same census tract as the KPR plant.

Last year the Inspector General of the US Environmental Protection Agency released a report calling on the organization to communicate with communities where ethylene oxide levels increased risks above 100 in a million. The locations in Covington and Smyrna were both flagged, but KPR was not.

Hays said it's also often difficult to model where ethylene oxide is coming from and what the risks are, given low concentrations. Sterilizing plants are just one possible source of the gas. Georgia EPD has monitoring sites in both urban and rural areas far from any sterilizing plants to compare to emissions outside the sterilizing plants. 

"The EPA method used to analyze these samples is not robust at these very low concentrations, and EPA is saying the same thing," Hays said. "With the very low concentrations we see in the air, the method is just not accurate. What we're finding is that the concentrations that we monitor in our urban background site are very similar to concentrations we're monitoring near the facility near Covington, near the facility in Atlanta."

In April 2020, EPD wrote a memorandum modeling the ethylene oxide levels outside of the KPR facility, examining acceptable ambient concentrations, which is the amount that would increase cancer risks by one in a million. At the nearest residential areas to the plant, the level was 1.6 to 4.9 times the annual acceptable ambient concentrations.

"(That AAC measure for the residential areas means) the risk of developing excess cancers over a lifetime would be as much as 4.9 in a million, if exposed to that concentration continuously over a lifetime," Hays said. "You'd add that to (a) one in three chance of developing cancer anyhow. So it would increase your potential for developing cancer slightly."

The AAC is a trigger for further attention – if the emissions are over the AAC, then the EPD will look into requiring additional controls for emissions – not a hard legal limit. At that point, Hays said, they would require a plant to install additional controls if feasible. But she said the KPR plant has not triggered any additional control requirements.