Denka asks U.S. appeals court to stay 'draconian' EPA rule

LAPLACE, La.—Denka Performance Elastomer L.L.C. has filed an emergency motion in the U.S. Court of Appeals, District of Columbia, to stay what it calls a "draconian and politically motivated" 90-day compliance period imposed by U.S. EPA's new chloroprene rule.

"DPE took this action to prevent EPA from singling out its facility with an illegal and politically motivated deadline that EPA, itself, acknowledges is impossible to meet," Denka told Rubber News in a May 28 email.

The U.S. Environmental Protection Agency could not immediately be reached for comment.

EPA on April 9 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 administration through EPA Administrator Michael Regan, has its roots in the Mississippi River Chemical Corridor, aka "Cancer Alley," an 85-mile stretch of 150 chemical plants in Louisiana between Baton Rouge and New Orleans.

Denka requested an administrative stay of EPA’s 90-day compliance period April 17, a request that was denied by EPA April 30.

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

The updated rule seizes on more than 80 different chemicals overall, however those slated for fenceline measurements include: 1,3-butadiene, benzene, ethylene dichloride and vinyl chloride, to accompany chloroprene and ethylene oxide.

For fenceline monitoring at synthetic organic chemical manufacturing plants, the agency set a deadline of two years (April 9, 2026) in response to comments that facilities and laboratories need additional preparation time to begin the monitoring programs.

For neoprene production sources, EPA set a 90-day deadline (July 9) for beginning fenceline monitoring of chloroprene emissions—precisely what Denka vehemently opposes.

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

The company pointed to nearby chemical plants with "higher estimated risk" that do not fall under the 90-day deadline.

"There is no lawful basis for EPA's disparate treatment of the DPE facility, requiring DPE to propose and engage in 'specific measures' to further 'reduce emissions' in order to alleviate the irreparable burdens caused by the 90-day implementation requirement, when all other facilities subject to the rule, including multiple facilities with higher estimated risk than the DPE facility, are not subject to any such requirements yet still received a two-year implementation period," Denka states in the May 28 court filing.

In its mandate, the EPA expects the biggest reductions from chemical plants to come from EtO emissions from eight plants in Texas and Louisiana.

EPA said its proposal will cut 58,000 tons a year of EtO from the environment—a 63-percent reduction compared to total nationwide estimated emissions (in 2020) from all sources.

The changes are expected to cut chloroprene emissions by 74 percent nationwide, compared to estimated emissions for 2020, according to EPA.

No timeline was immediately known for the U.S. Court of Appeals to issue a ruling, however Denka urged a decision by June 28, citing "continuing, escalating and irreparable harm."

"Unless  DPE  can  obtain  relief  from  the  90-day  compliance  deadline, the facility will have to shut down and likely never restart," Denka states in its motion.

Robert Taylor, founder of Concerned Citizens of St. John the Baptist Parish, told Rubber News April 9 that the community continues to suffer from high rates of cancer and other diseases due to under-regulated emissions.

"After the EPA closed our civil rights complaint without resolution, we felt little hope that any government could protect us from industry," Taylor said. "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, in St. John the Baptist Parish, almost exactly one year ago, using DPE as a backdrop to announce the then-proposed rule that is set to curb emissions by up to "6,000 tons per year."

Denka has traded lawsuits with the Department of Justice and the EPA over the past two years, challenging both the science behind the measurement methodology and implementation of policies to curb plant emissions.

"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."

In addition to what Denka calls EPA's "arbitrary and capricious compliance period," DPE said May 28 it will challenge EPA's "steadfast refusal to consider the most recent science on chloroprene risk in setting the requirements of the rule."

"There is no 'imminent endangerment' near DPE's LaPlace facility," Denka states in the May 28 emergency motion. "This is demonstrated by the facility's fenceline monitoring system, which confirms that chloroprene emissions remain at historically low levels due to DPE's significant investments and innovation, coupled with the dedicated work of our employees."

Denka has further cited the Louisiana Tumor Registry, which Denka said shows "no increased risk of cancer in and around the Denka facility."

"DPE strongly disputes the flawed science that forms the basis of EPA's rule and draconian compliance period," Denka said May 28.

DPE employs about 250 workers in LaPlace.