A federal appeals court in Washington, D.C., has refused to block a new federal rule requiring Denka Performance Elastomers to dramatically limit the release of chloroprene, a likely cancer-causing chemical, within 90 days or shut down its LaPlace plant.
In a challenge filed with the U.S. Court of Appeals for the D.C. Circuit in late May, Denka said the new Environmental Protection Agency rule was illegal and politically motivated, and that dozens of other plants covered by the same rule, but for different risky chemicals, were given two years to reduce their emissions.
The company has argued that it will take at least two years to install a variety of equipment that would guarantee those emission reductions, and without that additional time, it would have to shut down.
The new rule has a provision allowing companies to request such delays if necessary. Denka has said it discussed a delay with EPA but was turned down. In court filings, EPA has said Denka had not asked for a delay.
In its brief order filed late Wednesday, a three-judge panel wrote that Denka had "not satisfied the stringent requirements for a stay pending court review."
The appeals court judges are Gregory Katsas and Neomi Rao, both appointed by Donald Trump, and Michelle Childs, appointed by Joe Biden.
If the ruling stands, Denka will be required to reduce its emissions of chloroprene to the equivalent of no more than 0.2 or 0.3 micrograms per liter of air, depending on how the chemical is monitored, which represents eliminating 98% of the company's emissions, by Oct. 15.
“Denka’s recent fenceline monitoring has shown excellent improvements, including many monitors at or below 0.3 micrograms, which is the action threshold under EPA’s new rule," Denka said a statement. "EPA’s demand in the ISE litigation is that every individual monitor must be below a threshold of 0.2 on an annual average basis, and the plant cannot restart until modeling demonstrates an ability to achieve that result.”
Denka Performance Elastomers asked a federal appeals court in Washington, D.C., on Tuesday to block a new federal rule requiring it to dramati…
Wednesday's ruling does not end Denka's challenge of the new EPA rule, however. The panel directed its clerk to set up a schedule for filing briefs by Denka, EPA and nine environmental groups that intervened in support of the federal agency.
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. The plant, the sole producer of neoprene in the U.S., has 250 employees.
The other chemicals targeted with similar reductions under the rule are ethylene oxide, emitted by at least 20 other plants in the state; benzene; 1,3-butadiene; ethylene dichloride and vinyl chloride, also emitted by numerous Louisiana plants.
Denka said it was disappointed in the decision, and "will continue to fight EPA’s politically motivated actions that have intentionally singled out DPE among all other chemical manufacturers in the nation."
"While the likelihood of a court staying a federal agency rulemaking was always low (the court has not granted a stay of an EPA rule in at least the last 10 years), DPE has several remaining options to extend EPA’s unrealistic compliance deadline against our facility, including the extension application that we submitted to LDEQ several weeks ago," the statement said.
In that request filed with the Louisiana Department of Environmental Quality on April 19, Denka detailed a variety of changes it would have to make in its manufacturing process, many of which would require construction projects that it estimated would take two years to complete.
Attorneys representing environmental groups that opposed the stay praised the ruling.
“The court’s refusal to block EPA’s rule is a win for the communities of St. John the Baptist Parish,” said Earthjustice attorney Deena Tumeh. Earthjustice is representing several environmental groups in the Denka rule challenge.
“The chloroprene reductions required by the rule are long needed, and EPA’s decision to require swift compliance is a recognition of the danger Denka poses to community members’ health,” she said. Tumeh also said it was unlikely the company's request for a delay in the permit filed with DEQ — and not EPA — in April would be successful because EPA is still overseeing the new rule.
Environmental regulators called on a federal judge Monday to immediately force Denka Performance Elastomer to reduce its emissions of chloroprene, the likely cancer-causing chemical produced at its controversial plant in St. John the Baptist Parish.
Denka also is awaiting word on when a separate lawsuit will move forward that was filed against the company by EPA in February 2023 in a federal court in New Orleans. That suit was over emission violations by Denka under rules in place before the new regulation was approved.
That case was put on hold when EPA announced a preliminary version of the new rule, but with final publication of the rule in April, has restarted. A federal judge has ordered Denka and EPA to attend a hearing in early July to discuss how the case will move forward.
The Justice Department, which represents EPA in both cases, declined to comment on either one. The EPA also did not respond to a request for comment.
Separately, Denka officials have also reported two releases of toxic chemicals at its site in June to the Coast Guard National Response Center and Louisiana State Police.
On June 17, the company said four pounds of "HCL seed," formed from chloroprene and two other substances, was spilled when an automatic valve in a processing unit developed a leak. On June 20, the company reported the release of an unknown amount of butadiene liquid and vapors from a failed gasket.
“Both events were properly reported, root cause investigations are being conducted, and follow-up reports will be made to the regulatory authorities that describe the underlying causes and the corrective actions taken," Denka said.
"No injuries or emergency condition either inside or outside the plant existed during either incident, and neither event related to any release of chloroprene. In addition, no off-site impacts were noted during either incident, and no city or parish emergency response was necessary for either incident.”