In United States of America v. Denka Performance Elastomer LLC and DuPont Specialty Products USA LLC, Denka recently told a federal appeals court that it will have to permanently close its Louisiana facility if it’s forced to comply with an EPA mandate to reduce emissions within 90 days.

NV77 / Shutterstock.com

Background

Denka operates a chemical manufacturing plant in LaPlace, Louisiana, which is located beside the Mississippi River. Denka purchased the facility, previously owned by DuPont, in 2015. The company employs roughly 250 people in the production of neoprene, a synthetic rubber used in automotive belts and wetsuits. During the manufacturing process, chloroprene is also produced.

The facility is approximately a half-mile from an elementary school in Reserve, Louisiana. Home to approximately 83 chemical plants and 45,000 residents, who are predominantly low-income black families, this region has earned the nickname “Cancer Alley” because pollution from the plants has been blamed for high rates of cancer in the area.

The EPA classified chloroprene as “likely to be carcinogenic to humans” in 2010.

“Children under the age of 16 are particularly vulnerable to mutagenic carcinogens like chloroprene,” states an EPA news release. “Denka’s chloroprene’s emissions reach more than 300 young children who attend the 5th Ward Elementary School, located within approximately 450 feet of Denka’s facility. An estimated 1,200 children who attend East St. John High School, located roughly a mile-and-a-half north of Denka, are also exposed to the facility’s chloroprene emissions.”

Previous skirmishes

In February 2023, on behalf of the EPA, the U.S. Department of Justice filed a complaint under Section 303 of the Clean Air Act (CAA) against Denka to compel the company to significantly reduce hazardous chloroprene emissions from its manufacturing plant. The complaint asserts that the plant’s operations present an imminent and substantial endangerment to public health and welfare due to the cancer risks from Denka’s chloroprene emissions.

“According to the complaint, … air monitoring – conducted by both the EPA and Denka over the past several years – consistently shows long-term chloroprene concentrations in the air near Denka’s LaPlace facility that are as high as 14 times the levels recommended for a 70-year lifetime of exposure,” the Agency news release notes. “This complaint seeks to compel Denka to eliminate the public health endangerment caused by its emissions by greatly reducing the levels of chloroprene to which this community is being exposed.

“The complaint also names DuPont Specialty Products USA LLC – the owner of the land beneath Denka’s facility and Denka’s landlord. DuPont is a necessary party to ensure there are no delays in any actions that Denka is ordered to take to reduce its chloroprene emissions as a result of the rights DuPont holds under its lease agreement with Denka.”

Earlier this year, in its defense against the EPA, the company said that “the EPA overstepped its authority when it sought rapid reductions of … chloroprene emissions at the plant under a little-used provision of the [CAA] intended for emergencies,” Reuters says. “Non-emergency provisions of that law are available to address concerns at the plant …, the company said in a summary judgment filing.

“Denka argued … the court should grant the company summary judgment in the case, noting it has reduced plant emissions by 85% in recent years. The company said remaining emissions do not pose the type of immediate threat that would justify evoking Section 303 of the [CAA], which is intended for emergency public health matters.

“Jason Hutt, an attorney representing Denka, called the EPA enforcement effort ‘unprecedented’ and said a decision in favor of the EPA would empower the Agency to launch similar enforcement actions against a ‘wide range of U.S. manufacturers in the chemical industry.’”

Final rule to strengthen standards for synthetic organic chemical plants and polymers and resins plants

With the Denka case ongoing, on April 9, 2024, the EPA announced a set of final rules expected to significantly reduce emissions of toxic air pollution from chemical plants, including the potent air toxics ethylene oxide (EtO) and chloroprene.

“Once implemented, the rule will reduce both EtO and chloroprene emissions from covered processes and equipment by nearly 80%,” the EPA news release continues. “A requirement for these facilities to conduct fenceline monitoring for key toxic chemicals is included, and EPA will make the data publicly available to better inform and safeguard nearby communities.

“The rule also reduces additional air toxics, such as benzene, 1,3-butadiene, ethylene dichloride and vinyl chloride. By cutting emissions of these chemicals, the rule will reduce the risks of developing cancer from breathing in toxic air pollutants. In addition, the rule will reduce smog-forming volatile organic compounds by 23,700 tons a year.”

Environmental concerns

Environmental groups have jumped to the EPA’s defense to intervene in U.S.A. v. Denka by filing a Motion to Intervene.

The motion is spearheaded by the Environmental Defense Fund (EDF) and Earthjustice on behalf of Air Alliance Houston, California Communities Against Toxics, the Concerned Citizens of St. John, the Environmental Integrity Project, the Louisiana Environmental Action Network (LEAN), RISE St. James, the Sierra Club, and Texas Environmental Justice Advocacy Services (T.E.J.A.S.).

Environmental advocates have historically battled against air regulators in Louisiana and have previously alleged civil rights violations against air permittees located within Cancer Alley. They argued that the regulators “have allowed new facilities in places where Black residents already endure too much pollution and won’t do enough to set better controls at dangerous facilities,” news station WDSU says.

The EPA initially opened a civil rights investigation against the Louisiana Department of Environmental Quality (LDEQ) and said it found evidence to support racial discrimination.

Community activists were ecstatic about what appeared to be progress at last in their ongoing battle against pollution in the area.

Multiple sources reported that negotiations between Louisiana regulators and the EPA soured at some point, which resulted in a suit filed against the EPA by Louisiana’s attorney general in May 2023.

Once Louisiana filed suit, the EPA Office of External Civil Rights Compliance (OECRC) abruptly announced it was closing its investigation without making any determinations.

Current conflict

In court, Denka used the new EPA chemical emissions rule as part of its defense, pointing out that “other, more dangerous facilities face a two-year deadline to comply while it was singled out with an ‘illegal and politically motivated’ 90-day deadline,” WDSU adds.

“Absent relief from the 90-day implementation period, [Denka] will have no ability to comply with the rule and will be forced to shut the facility, likely permanently,” the company told a Washington, D.C., federal appeals court.

“When the agency originally proposed tougher emissions limits, Denka had a longer timeframe to comply.  But the EPA sued the company last year, finding the facility posed an ‘imminent and substantial endangerment’ to the nearby community. And EPA said that finding justified a shorter, 90-day deadline specified in its final rule.”

Denka is asking for an extension on the 90-day deadline, but the EPA wants the company to put together an emissions reduction plan with specific time commitments before it considers additional time.

Denka has also requested that the federal appeals court freeze the EPA’s new chemical emissions rule during its litigation against the Agency.

“[Denka] will need at least two years to plan, develop, test and install the controls required by the rule,” the company said in a court filing, according to WDSU.

“To succeed, the company needs to show EPA’s deadline will cause ‘irreparable harm.’ It uses the threat of closure to argue that the court needs to act quickly.”

For some time, Denka has been at the center of the Cancer Alley debate, which explains why environmental groups are supporting the EPA in this matter.

“Earthjustice clients and EDF strongly oppose Denka’s request to stay the compliance deadline, as immediate pollution reductions are needed to protect nearby communities,” an EDF press release says.

The Earthjustice filing includes information about the new EPA chemical emissions rules that allow companies to request a compliance deadline waiver. The filing asserts Denka didn’t seek a waiver from the EPA, an Earthjustice press release says.

“However, Denka did submit a request on April 19 to the [LDEQ] seeking a two-year delay, pointing out equipment it needs to meet the new requirements takes much longer than 90 days to install,” news site NOLA.com says. "Without additional time for implementation, a compliance period shorter than two years would jeopardize the continuing viability of the facility and the jobs and livelihood of hundreds of employees and contractors who work there," the request said.

With the EPA claiming “imminent and substantial endangerment,” environmental groups calling “foul,” and Denka claiming “irreparable harm,” it’s difficult to determine which way the court will rule. Considering the circumstances, the court may strike a compromise, giving Denka more time while requiring specific compliance dates.