New EPA rule tightens emissions standards for Denka, hundreds of chemical companies

WASHINGTON—The U.S. EPA has finalized a major rule governing toxic air emissions at about 200 synthetic organic chemical, polymer and resin production plants from the Gulf Coast to West Virginia.

The update to the Clean Air Act, announced by the Biden adminstration through EPA Administrator Michael Regan April 9, has its roots in the Mississippi River Chemical Corridor, a.k.a. "Cancer Alley," an 85-mile stretch of 150 chemical plants in Louisiana between Baton Rouge and New Orleans.

"For years, we've watched our families and neighbors suffer from disease, like cancer, due to underregulated emissions," Robert Taylor, founder of Concerned Citizens of St. John the Baptist Parish, told Rubber News in an April 9 email. "After the EPA closed our civil rights complaint without resolution, we felt little hope that any government could protect us from industry.

"But Administrator Regan's visit to our community and this final rule are renewing our hope. They're a starting point for lowering toxic emissions and saving the children in our community."

EPA Administrator Michael Regan traveled to LaPlace, La., in St. John the Baptist Parish almost exactly one year ago, using Denka Performance Elastomers L.L.C. as a backdrop to announce the then-proposed rule that is set to curb emissions by up to "6,000 tons per year."

Denka, which has traded lawsuits with the Department of Justice and the EPA over the past two years, called the new rule "draconian."

"DPE vehemently opposes the compliance deadline imposed by EPA's latest rulemaking," Denka stated in an April 9 email to Rubber News. "EPA's drastic reduction of the compliance period—from two years to 90 days—is unprecedented and is clearly driven by its ill-founded, politicized approach to regulating chloroprene emissions at America's only neoprene manufacturing facility.

"This draconian deadline would in itself force DPE to idle its operations at tremendous expense and risk to its hundreds of dedicated employees."

The company added it will pursue further legal challenges to extend the three-month compliance period and challenge the overall rule, the latter likely to come through class action enjoinment with other major ethylene oxide producers.

"After addressing EPA's unrealistic compliance deadline, DPE expects to join the ethylene oxide manufacturers across the U.S. in opposing the substantive requirements of this rule," the company said.

In both its response to this new rule and in previous lawsuits, Denka has disputed both the science behind fenceline measurement data and the effects of chloroprene emissions at the facility.

Chloroprene is a monomer for neoprene, and Denka remains the only domestic neoprene producer.

"EPA's rulemaking is yet another attempt to drive a policy agenda that is unsupported by the law or the science," Denka stated. "The agency has inexplicably refused repeated requests from the state of Louisiana and its elected officials to update the research underlying its assessment of chloroprene emissions risk, going so far as to fabricate internal agency emails to prevent fresh science from seeing the light of day."

EPA alleges that DPE's facility represents a danger to its community (classifying chloroprene as a "likely carcinogen"), despite the facility's stated compliance with federal and state air-permitting requirements.

"President Biden believes every community in this country deserves to breathe clean air," Regan said in an April 9 press conference. "That's why I took the Journey to Justice tour to communities like St. John the Baptist Parish. We promised to listen to folks that are suffering from pollution and act to protect them.

"Today we deliver on that promise with strong final standards to slash pollution, reduce cancer risk, and ensure cleaner air for nearby communities."

DPE said EPA has "ignored inconvenient facts in pursuing its agenda, including data from the Louisiana Tumor Registry demonstrating that incidences of cancer in the parish in which DPE is located are below the averages in the rest of the state, and the results of the most robust epidemiological study of chloroprene workers refuting any link between chloroprene and cancer."

The new rules represent the first time in more than 20 years that EPA has tightened limits on chemical emissions, to be measured with fenceline data and other mandated reporting for the hundreds of affected chemical companies.

The updated rule seizes on more than 80 different chemicals, including 1,3-butadiene, benzene, ethylene dichloride and vinyl chloride, to accompany chloroprene and ethylene oxide.

Earthjustice, a non-profit environmental litigation firm, represented St. John the Baptist Parish in its civil rights battles with both the EPA (in the federal group's dismissal of a Title VI complaint late last year) and Denka.

"Frontline communities in these areas have long borne the brunt of toxic emissions from chemical plants," said Patrice Simms, Earthjustice vice president for healthy communities. "Today marks a victory in our pursuit for environmental justice, with the final rule poised to significantly reduce the toxic air pollution that harms communities in Texas's Gulf Coast, Louisiana's Cancer Alley and throughout the U.S."

Setting protective air standards for hundreds of chemical plants and requiring fenceline monitoring for some of the most toxic emissions shows "a commitment to protecting public health," Simms said.

"We look forward to the EPA's swift implementation and rigorous enforcement of this critical rule," she said.

For its part, the American Chemistry Council said last year that while it understood communities' concerns, the group also harbored reservations, especially as the rule relates to ethylene oxide.

"We support strong, science-based regulations for our industry," ACC said in April 2023, "but we are concerned that EPA may be rushing its work on significant rule-making packages that reach across multiple source categories and could set important precedents."

The U.S. Chamber of Commerce also opposed the new rule.

"EPA should not move forward with this rule-making based on the current record because there remains significant scientific uncertainty," the U.S. Chamber wrote in a letter earlier this year to the agency.

The new rule marks only the second time that EPA has mandated fenceline monitoring in air toxics standards under the Clean Air Act, the last being 2015's petroleum refinery rule.

Updates include risk-based standards for emitters of ethylene oxide and chloroprene and updates to standards for flares.

The EPA rule essentially revamps several Clean Air Act regulations (as amendments to the National Emissions Standards for Hazardous Air Pollution, or NESHAP) that apply to a variety of equipment and processes used to make synthetic organic chemicals and a variety of processes used in polymer and resin production, including neoprene production.

The rule centers on EtO and chloroprene, though it covers other hazardous air pollutant emissions from the Synthetic Organic Chemical Manufacturing Industry, including Group I Polymers and Resins, and Group II Polymers and Resins.

The biggest risk reductions from chemical plants will come from cutting EtO emissions from eight plants that EPA said currently pose the highest risk to surrounding communities in Texas and Louisiana.

EPA said its proposal will cut 58 tons a year of EtO from the environment—a 63-percent reduction compared to total nationwide estimated emissions in 2020 from all sources.

The EPA also said the changes will cut chloroprene emissions by 74 percent nationwide, compared to estimated emissions for 2020.

Rubber News published a list last year of the more than 200 chemical companies listed by the EPA that could be subject to provisions of the new rule.

Not all of the facilities on the list are required to conduct fenceline monitoring—only the companies that produce the aforementioned six "focus" chemicals would be required to conduct such measurements—and some facility names may have changed recently due to new ownership.

EPA said it modeled the fenceline monitoring requirements after its measuring methods for petroleum refineries, which have successfully identified sources of high benzene emissions and prompted corrective actions to reduce the emissions.

The monitoring requirements also will provide transparency, EPA said, for nearby communities about what is coming out of the plants.

Requirements in the final rule are largely the same as what EPA proposed. However, the agency made several changes to proposed requirements in response to public comments.

For fenceline monitoring at synthetic organic chemical manufacturing plants, the agency is setting a deadline of two years in response to comments that facilities and laboratories need additional preparation time to begin the monitoring programs.

For neoprene production sources, EPA is setting a 90-day deadline for beginning fenceline monitoring of chloroprene emissions—a change that Denka vehemently opposes.

For all six pollutants, owners and operators must find the source of the pollution and make repairs if annual average air concentrations of the chemicals are higher than a specified action level at the fenceline.

The action levels vary depending on the chemical.

Starting one year after monitoring, facilities will be required to submit quarterly data to EPA, which will be due within 45 days of the end of each quarter, the federal organization states in its rule.

EPA then would make the monitoring data available to the public through its WebFIRE database.

The new rule is prescient for the residents of St. John the Baptist Parish, which has an elementary school within 450 feet of Denka.

"For too long, communities, especially those that are predominantly Black, Latino and low-income, have suffered unnecessary exposure to these dangers," Earthjustice said.

Denka added that it has monitored its own emissions "for years" and "remains firmly committed to its ongoing efforts to reduce emissions."

The company said it has invested more than $35 million over the years in mitigating toxic emissions.

"DPE pledges to fight EPA's politically tainted rulemaking with every means at its disposal," the company said.