NEW ORLEANS—Thirteen plaintiffs from LaPlace, La., have refiled their complaint against Denka Performance Elastomer L.L.C. after a federal judge threw out their case against co-defendant DuPont Co.
The plaintiffs claim that chloroprene emissions from the Pontchartrain neoprene plant in LaPlace caused their cancer.
In the amended complaint filed Aug. 8 before the U.S. District Court for the Eastern District of Louisiana, the plaintiffs allege that Denka knew the Pontchartrain plant emitted harmful concentrations of chloroprene emissions when it purchased the plant from DuPont in November 2015.
The suit also alleges that Denka did nothing to abate the emissions in LaPlace, and concealed knowledge of them from the Environmental Protection Agency, the Louisiana Department of Environmental Quality and officials of St. John the Baptist Parish, where LaPlace is located.
The complaint originally was filed in June 2017 with the 40th Judicial Circuit Court for St. John the Baptist Parish, and later transferred to the Eastern Louisiana federal court.
The complaint seeks an injunction against Denka to keep chloroprene concentrations in the area around the plant below 0.2 micrograms per cubic meter of air, the level which, according to the plaintiffs, the EPA established as an acceptable risk exposure threshold.
It also seeks court costs, expenses and "reasonable attorneys' fees," in the wording of the document.
The plaintiffs do not seek compensatory or punitive damages, which was why Judge Martin Feldman of the Eastern Louisiana court dismissed DuPont as a defendant July 26.
"An injunctive remedy is an appropriate form of redress if it will effectively abate or deter illegal conduct that is ongoing at the time of the lawsuit," Feldman wrote in his order dismissing the case against DuPont.
"But an injunction would only abate Denka's conduct," he wrote. "The plaintiffs simply have neither alleged nor advanced any argument that any nuisance or deprivation they are experiencing (and will continue to experience in the future if emissions are not abated) is traceable to DuPont's present or future conduct.
"More significantly, the plaintiffs fail to allege facts sufficient to support a finding that a favorable judgment against DuPont would redress their forward-looking injury," Feldman wrote.
Feldman gave the plaintiffs 14 days to file an amended complaint, which they did.
This was the second time Feldman ruled against the plaintiffs. In March, he declined their motion for class-action status, on the grounds they had missed the deadline to file.
In its Aug. 23 reply to the plaintiffs' revised complaint, Denka challenged the suit on factual grounds.
For example, Denka noted that the Occupational Safety and Health Administration's permissible exposure limit to chloroprene, on an eight-hour, time-weighted average, is 90 milligrams per cubic meter.
This works out to 90,000 micrograms per cubic meter, Denka said—450,000 times the 0.2 milligrams per cubic meter the complaint advances as the proper standard.
Denka also said that the EPA identifies the threshold limit value (TLV) for chloroprene from the American Conference of Governmental and Industrial Hygienists as sound. That time-weighted limit works out to 36,000 micrograms per cubic meter, or 180,000 times more than 0.2 micrograms, the company said.
In February 2018, Denka said it had refiled a request for reconsideration of the EPA's 2010 Toxicological Review of Chloroprene, which the company believes contains basic scientific errors.
Denka made a voluntary agreement with the Louisiana DEQ in January 2017 to reduce chloroprene emissions at the Pontchartrain plant by 85 percent, the company said. By the end of the year, it had installed more than $30 million in emissions control equipment there, including a new regenerative thermal oxidizer.
A Denka spokesman declined comment on the case, because it is ongoing legislation.
“There is no evidence to suggest our operations pose an increased impact of health impacts to local residents,” a Denka statement said.
“Existing scientific research, including a long-term study that included workers from our LaPlace facility and health studies compiled by the State of Louisiana, clearly show no increased incidence of cancer in St. John Parish,” the company said.
DuPont officials could not be reached for comment.