Circuit court grants Denka's emergency petition to stay chloroprene emission compliance period

NEW ORLEANS—In the battle to extend a U.S. EPA-imposed, 90-day compliance period for chloroprene emission retrofits, a three-judge panel of the U.S. Fifth Circuit Court of Appeals has granted Denka Performance Elastomer L.L.C.'s emergency petition to stay.

The July 31 order essentially "prevents the U.S. EPA from disregarding" a two-year extension issued to the neoprene producer by the state of Louisiana June 27, through the Louisiana Department of Environmental Quality.

However, the order does not resolve the same appellate court's consideration of LDEQ's authority to supersede EPA in granting the two-year extension.

DPE filed the emergency petition to stay to the Fifth Circuit July 11, and the request to uphold the state's authority in the matter to the same court July 12.

"DPE is pleased with the court's stay decision, which ensures the continuing effectiveness of LDEQ's two-year extension while the court continues to consider DPE's appeal and provides important, near-term certainty to our company and the 250 employees at our facility, which is the sole domestic producer of neoprene," Denka said in a July 31 statement to Rubber News.

The U.S. EPA had given DPE a 90-day deadline to comply with the fenceline threshold standards (that was set to expire July 15), as developed by EPA under a sweeping new rule for chemical emissions.

The U.S. Court of Appeals (District of Columbia) on June 26 rejected an initial motion to stay filed by DPE May 28. This motion was related to a stay of the EPA rule itself, while the emergency petition to stay filed July 11 with the Fifth Circuit was related to the LDEQ extension.

In the same July 31 order granting Denka's emergency petition to stay, the Fifth Circuit also denied EPA's motion to dismiss the Denka emergency petition.

"The stay means that EPA cannot disregard LDEQ's two-year extension while the court considers and resolves the issue of the validity of the extension, an issue on which the court—in granting the stay—essentially found DPE is likely to succeed," according to Denka. "EPA is prohibited from using its enforcement authority to impose draconian requirements of its rule ... (and) unlawfully singling out DPE."

EPA did not return calls seeking comment.

According to Denka, the LDEQ issued the two-year extension based on "no imminent endangerment" associated with the emissions at DPE's facility in LaPlace, Louisiana.

Denka claims its own science and studies demonstrate that the emissions are sufficiently low at the facility, while EPA's science and fenceline measuring methodology are "flawed and outdated."

"DPE was forced to file this motion to seek protection from the court on an emergency basis to prevent EPA from challenging the compliance period extension LDEQ granted," Denka stated.

For more than 40 years, the LDEQ has held "primacy" to enforce Clean Air Act regulations, according to LDEQ officials.

The two-year extension would allow Denka until July 15, 2026, to retrofit the plant to meet the 0.2 micrograms per liter fenceline threshold for chloroprene emissions, as imposed by EPA.

According to LDEQ Secretary Aurelia Giacometto, DEQ sits "squarely in the middle of environment and business."

"And last week, by the authority given to me and this agency, we re-issued a two-year extension for Denka to be able to implement its emissions reductions," Giacometto said July 1 during a press conference at Denka. "It is impossible to implement those reduction emissions in 90 days. In effect, EPA's rule is effectively a stop-order for this company.

"And Louisiana will not stand idly by and let that happen. Under authority given to DEQ, the extension was granted, and they can continue to operate and reduce their emissions moving forward."