Department of Justice drops chloroprene emissions lawsuit against Denka

LAPLACE, La.—A chloroprene emissions compliance lawsuit brought two years ago by the U.S. EPA against Denka Performance Elastomer L.L.C. was summarily dismissed by the Department of Justice March 7.

The DOJ said the dismissal of the complaint, brought Feb. 28, 2023, by the EPA (and later referred to DOJ for compliance enforcement) under the Biden administration, is part of "President Trump's mandate to end radical DEI programs."

"The dismissal of this case is a step toward ensuring that environmental enforcement is consistent with the law," EPA Administrator Lee Zeldin said in a March 7 statement to Rubber News. "While EPA's core mission includes securing clean air for all Americans, we can fulfill that mission within well-established legal frameworks, without stretching the bounds of the law or improperly implementing so-called 'environmental justice.' "

The U.S. District Court for the Eastern District of Louisiana conducted a status conference hearing March 5 between representatives of Denka, DuPont Specialty Products U.S.A. L.L.C. (which sold the plant to DPE in 2015) and the U.S. government, which led to the dismissal.

"At the status conference, the court discussed the status of the litigation with the parties and was informed that the parties intend to file a ... stipulation of dismissal signed by all parties," Judge Carl Barbier wrote in a March 5 court entry.

Concurrently on March 7, EPA withdrew its compliance enforcement referral of the case to DOJ "to align with (Zeldin's) pledge to end the use of 'environmental justice' as a tool for advancing ideological priorities," according to DOJ.

At the heart of the EPA's argument was Section 303 under the Clean Air Act, which allows the federal agency to force a company to shut down, or it can ask the courts to do so, if a company is not meeting fenceline emissions standards.

In this case, EPA argued that residents of nearby St. John the Baptist Parish have been placed in "imminent and substantial endangerment" by Denka's allegedly caustic chloroprene emission levels.

Earthjustice, the non-profit that has represented the Concerned Citizens of St. John the Baptist Parish throughout the litigation, could not immediately be reached for comment.

"In an effort to satisfy this standard, the Biden-era complaint alleged a marginally increased risk of harm after prolonged exposure," according to DOJ. "The complaint did not allege that emissions from Denka's LaPlace plant violated any regulatory air quality standard.

"The prior administration framed the case as part of its ongoing effort to advance environmental justice in 'overburdened communities.' This is a clear example of the racial preferencing now prohibited by President Trump's executive order."

Denka said the dismissal is "long overdue."

"(The dismissal) is a long overdue and appropriate end to a case lacking scientific and legal merit from the start," Denka said in a March 7 statement to Rubber News. "No 'emergency' can exist when the facility's emissions are at an historical low as a result of DPE's investment (more than $35 million in 2017) and the innovation of its work force."

Several years ago, EPA instituted the "Integrated Risk Information System" review program to gauge fenceline emissions and subsequent chloroprene levels in the air.

Despite other scientific research employed by Denka, the EPA's science was considered the standard for much of the ongoing litigation.

Denka believes the science was flawed from the start.

"The IRIS program was misused to dramatically exaggerate the cancer risk of chloroprene with a series of overly conservative assumptions stacked on top of 20-year-old data," Denka said. "As a result, the actual potential health risk was not properly communicated to the community, the established process for risk assessment was disregarded and (statistics from) the Louisiana Tumor Registry (were) ignored."

Denka's 250-person LaPlace facility is the only production spot for neoprene in the U.S., used in orthopedic braces, wetsuits and automotive components.

"Today's dismissal reflects ENRD's renewed commitment to enforce environmental laws as Congress intended—consistently, fairly and without regard to race," said Acting Assistant Attorney General Adam Gustafson of DOJ's Environment and Natural Resources Division. "We do not regulate through litigation, nor do we stretch statutes beyond their plain meaning to advance political agendas."

DPE and the EPA have been in and out of litigation going back to 2017.

In April 2024, the U.S. EPA finalized a rule governing toxic air emissions at about 200 synthetic organic, chemical, polymer and resin production plants from the Gulf Coast to West Virginia.

Then-EPA Administrator Michael Regan said the update to the Clean Air Act had it roots in the Mississippi River Chemical Corridor, an 85-mile stretch known as "Cancer Alley" that has 150 chemical plants in Louisiana between Baton Rouge and New Orleans, including DPE.

Regan even undertook a "Journey for Justice" tour through the area to frame the Biden administration's EPA stance.

Denka told Rubber News last year that it considered the compliance deadline "politically driven," as the EPA set the period to comply with fenceline threshold standards at 90 days to meet chloroprene emissions standards at its plant in LaPlace.

The EPA had given other chemical companies two years to meet emission retrofits. It remains unclear how this two-year mandate for other companies will be affected under a Trump administration EPA.

Denka, though, found an ally in June 2024 in the Louisiana Department of Environmental Quality, which gave Denka its two-year extension to meet the emission mandates.

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

The two-year extension granted June 27 allows Denka until 2026 to retrofit the plant to meet the 0.2 micrograms per liter fenceline threshold for chloroprene emissions, as imposed by EPA.

It is unclear if those retrofit thresholds remain a mandate following the lawsuit dismissal.

Denka said it "remains committed to implementing the emissions reductions achieved as we turn the page from this relentless and draining attack on our business."

"We are also committed to working with the EPA to develop a sensible replacement for the Section 112 emissions standards for neoprene production," DPE said.