Cattle graze in a field next to the Denka Performance Elastomer chemical plant in Reserve on Tuesday, April 16, 2024. Nine environmental groups have intervened on behalf of the Environmental Protection Agency in an appeals court challenge by Denka of emission reduction rules the company says could shut its plant down. (Photo by Chris Granger, The Times-Picayune)
Cattle graze in a field next to the Denka Performance Elastomer chemical plant in Reserve on Tuesday, April 16, 2024. Nine environmental groups have intervened on behalf of the Environmental Protection Agency in an appeals court challenge by Denka of emission reduction rules the company says could shut its plant down. (Photo by Chris Granger, The Times-Picayune)
Nine environmental groups have intervened on the side of the U.S. Environmental Protection Agency in a federal appeals court challenge by Denka Performance Elastomers of new rules requiring a greater reduction in the company’s emissions of cancer-causing chloroprene.
Denka told the U.S. D.C. Circuit Court of Appeals in May that a portion of the new rule applied only to its chloroprene manufacturing operations and gave the company just 90 days to comply, potentially forcing the company to shut down. It questioned why other companies were given two years to comply with parts of the rule governing other chemicals.
Chloroprene is manufactured at the facility for the production of neoprene, a synthetic rubber material used in gloves and wetsuits. The plant, the sole producer of neoprene in the U.S., has 250 employees.
In requiring the 90-day compliance, EPA pointed to a separate lawsuit it filed against Denka in 2023 that charged its emissions “present an imminent and substantial endangerment to public health or welfare, or the environment.”
“We have the highest cancer risks from air pollution in the country, and we can’t afford to wait two more years for Denka to comply with the rules,” said Robert Taylor, executive director of Concerned Citizens of St. John, one of the intervening groups, in a news release. “Just 1,500 feet from this plant, over 400 students breathe toxic air every day at Fifth Ward Elementary School. These children are first and foremost in our minds as we fight for a better future.”
While a portion of the April EPA rule changes only affect Denka, the rule required reductions in a half-dozen other chemicals.
That means it applies to at least 200 industrial facilities nationwide, including about 20 that have emissions of ethylene oxide in Louisiana, and others in Louisiana that have emissions of benzene; 1,3-butadiene; ethylene dichloride, and vinyl chloride.
Companies with emissions of those other chemicals, however, were given two years to meet the targets.
The intervention in the Denka court challenge was filed by the Environmental Defense Fund; and by Earthjustice, an environmental law organization, on behalf of Concerned Citizens, the Louisiana Environmental Action Network, RISE St. James, Environmental Integrity Project, Air Alliance Houston, California Communities Against Toxics, Sierra Club and Texas Environmental Justice Advocacy Services.
The groups argue that EPA’s establishment of the tighter deadline for chloroprene was reasonable and consistent with federal law, and pointed to cancer risk data provided by experts retained by EPA as evidence of the need for the more stringent rules.
“An expert retained by EPA determined that a child living near one of Denka’s air monitors along the plant’s fenceline would accrue nearly triple the ’acceptable’ lifetime cancer risk by the age of two — before she could even attend school,” the filing said.
The filing also said the new rule includes a provision allowing a company to request a waiver, which could last as long as the two years Denka argued in its suit was needed to meet the rule’s new reduction requirements. Denka did not seek a waiver, the filing said.
However, Denka did submit a request on April 19 to the Louisiana Department of Environmental Quality seeking a two-year delay, pointing out equipment it needs to meet the new requirements takes much longer than 90 days to install.
“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,” said that request.
In its statement Friday, the company said that in its latest brief in the appeals court case, EPA suggested that an extension in time issued by DEQ “would be ineffectual.”
“This is just another unsubstantiated and legally false statement from an agency determined to usurp the State’s delegated authority to govern its businesses,” the statement said.
The new EPA rule requires Denka to reduce its emissions of chloroprene to no more than 0.2 or 0.3 micrograms per liter of air, depending on how the chemical is monitored, a reduction of more than 99% from its original permit limit. The company insists that the existing state regulation under which Denka was permitted, which set the limit at 857 micrograms per liter, was safe for area residents, though it entered into a consent agreement with the state Department of Environmental Quality in 2017 to reduce its emissions by 85%.
In its Friday statement, Denka said fenceline monitoring “confirms that chloroprene emissions remain at historically low levels due to DPE’s significant investment and innovation, coupled with the dedicated work of our employees.” In February, the company reported the average emissions for the last year were only 0.63 micrograms per liter, just above the new limits.
In its challenge filed in May, Denka said EPA’s rule was illegal and a politically motivated effort by the agency, noting that other chemicals covered by the order, like ethylene oxide, are as toxic as chloroprene.
Denka said that on April 30, after several hours of meetings between EPA and company officials, the agency refused to grant it a delay in meeting the deadline.
It also argued that EPA has refused to consider studies that it says dispute EPA’s use of a 2010 risk assessment that outline chloroprene’s risk of causing future cancers in the community surrounding the plant, ranking it among the worst in the nation.
Email Mark Schleifstein at mschleifstein@theadvocate.com or follow him on Twitter, @MSchleifstein. His work is supported with a grant funded by the Walton Family Foundation and administered by the Society of Environmental Journalists.
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