Denka Performance Elastomers has again turned to a federal appeals court to block enforcement of a new federal rule requiring it to dramatically limit the release of chloroprene, a likely cancer-causing chemical, by Oct. 15 or shut down its LaPlace plant.
The company has asked the U.S. 5th Circuit Court of Appeals in New Orleans to find that the state Department of Environmental Quality was within its rights to grant the company a two-year extension to install the equipment necessary to reduce emissions of chloroprene to an annual average 0.2 micrograms per liter, and to stay any efforts by the Environmental Protection Agency to enforce its Oct. 15 deadline for the reductions.
Under the DEQ extension, granted on June 27, the company would have until July 15, 2026, to complete upgrades at the plant.
Without additional time, Denka officials told the court, it would have to shut down operations, most likely permanently, "thereby destroying DPE’s business and jeopardizing the livelihoods of DPE’s roughly 250 employees and their families."
The company said that the only response it has received from EPA on the requested delay has been a statement that DEQ’s issuing the delay approval was “ineffectual." That was included in documents filed by EPA before the U.S. Court of Appeals for the District of Columbia in a May challenge of the legality of the emission reductions filed by Denka.
The DEQ was granted "primacy" to enforce federal Clean Air Act regulations nearly 40 years ago, and issued the time extension to Denka under that authority. What's different in this case, however, is that DEQ's two-year extension was granted before the new chloroprene reduction limit becomes official on July 15.
Neither EPA nor the U.S. Justice Department, which is representing EPA, would comment on the Denka filing.
Denka is contending that EPA doesn't have a legal right to limit the state's authority to oversee the new regulation.
In late June, the D.C. appeals court denied a separate request for a stay of the Oct. 15 closure requirement, ruling that Denka had “not satisfied the stringent requirements for a stay pending court review.” That court’s review of the underlying request challenging EPA’s new emission reduction rule is still ongoing.
EPA also filed a lawsuit against Denka in February 2023 in U.S. District Court in New Orleans that charged the company with emission violations that the agency said were threatening the health of nearby residents.
That suit was put on hold after EPA announced that it was making the rules for emissions of chloroprene and a half-dozen other chemicals more stringent, but was restarted after the new rule was published in the Federal Register. Earlier this week, EPA and Denka filed a joint motion outlining how they would move forward to bring that case to trial.
Louisiana formally intervened on the side of Denka in the D.C. appeals court case on July 1. The intervention was announced by Gov. Jeff Landry in a news conference at the plant, where he charged the rule was an example of the Biden administration unnecessarily moving jobs overseas.
Denka Performance Elastomer is the North American arm of a Japanese company, Denka Company Limited. Chloroprene is an ingredient manufactured at the facility as part of its production of neoprene, a synthetic rubber material used in gloves, diving wetsuits and other commercial products, including equipment used by the U.S. military. The plant is the sole producer of neoprene in the U.S.
The other chemicals targeted with similar reductions under the rule are ethylene oxide; benzene; 1,3-butadiene; ethylene dichloride and vinyl chloride.
In adopting the rule, EPA said it would cut emissions of those six likely human carcinogens from 51 chemical plants and refineries in Louisiana, and more than 200 nationwide, resulting in the elimination of tens of thousands of tons of toxic and smog-forming air pollutions.
EPA estimated the smog reductions alone would save nearly $770 million in health costs.
Louisiana facilities emitting those chemicals include the ExxonMobil Chemical, Honeywell and Formosa Plastics plants in Baton Rouge; Chalmette Refining; and the Westlake Vinyls, Lion Copolymer, BASF and other plants in in Geismar.
A chart included in Denka Performance Elastomer's filing with the U.S. 5th Circuit Court of Appeals shows how the company has reduced emissions of chloroprene measured at monitoring stations around the plant, when comparing 2022 and 2023 results. (Denka Performance Elastomers)
In its 5th Circuit filing, Denka renewed its arguments that the company already has made significant progress in reducing emissions, and is close to the new limits. It also disputes EPA studies classifying Denka as a cancer risk.
EPA has argued chloroprene emissions pose concern for children by accumulating in their bodies and quickly elevating their cancer risk. The Fifth Ward Elementary School is located near the plant.
It says newborns breathing current emissions near the Denka facility would double their lifetime acceptable cancer risk in their first two years of life.
