DOJ, EPA sue Denka in ongoing chloroprene emissions battle

WASHINGTON, D.C.—The U.S. Environmental Protection Agency has returned the volley in the battle with Denka Performance Elastomer L.L.C. over the neoprene producer's allegedly hazardous chloroprene emissions.

On behalf of the EPA, the U.S. Department of Justice filed a complaint Feb. 28 with the U.S. Attorney's Office for the Eastern District of Louisiana alleging that Denka, based in St. John the Baptist Parish in LaPlace, La., is a "public health endangerment" for the "carcinogenic air pollution" it is causing.

The complaint, filed under Section 303 of the Clean Air Act, demands that Denka "eliminate the public health endangerment caused by its emissions by greatly reducing the levels of chloroprene to which this community is being exposed."

Further specified mandates are enumerated in a Dec. 22, 2022, consent agreement issued by the EPA to Denka.

"When I visited Saint John the Baptist Parish during my first Journey to Justice tour, I pledged to the community that EPA would take strong action to protect the health and safety of families from harmful chloroprene pollution from the Denka facility," EPA Administrator Michael Regan said Feb. 28. "This complaint filed against Denka delivers on that promise."

In a March 3 email to Rubber News, Denka disputed the "unprecedented, politically motivated allegations of community endangerment," and the Japan-based firm continues its call for "sound science" in emission measurement.

"Denka Performance Elastomer strongly disagrees with the U.S. Environmental Protection Agency's recent decision to file a lawsuit claiming that the company's St. John the Baptist Parish neoprene facility's permitted chloroprene emissions pose 'an imminent and substantial endangerment' to its community," the company said. "EPA's allegations in the lawsuit directly contradict the agency's own prior statements, years of reliable health data relating to St. John the Baptist Parish where the facility is located, comprehensive studies regarding workers in the U.S. chloroprene industry showing no connection between chloroprene and cancer and the best available science on the potential risks of chloroprene."

According to the EPA, the company "has not moved far enough or fast enough to reduce emissions or ensure the safety of the surrounding community."

"This action is not the first step we have taken to reduce risks to the people living in Saint John the Baptist Parish, and it will not be the last," Regan said.

The most recent EPA complaint also names DuPont Specialty Products USA L.L.C., Denka's landlord, as a defendent.

"DuPont is a necessary party to ensure there are no delays in any actions that Denka is ordered to take to reduce its chloroprene emissions as a result of the rights DuPont holds under its lease agreement with Denka," the complaint states. "The LaPlace operations present an imminent and substantial endangerment to public health and welfare due to the cancer risks from Denka's chloroprene emissions."

DPE states that the EPA's Feb. 28 lawsuit "does not allege rates of cancer incidence in the area are higher than average, and in fact, data from the Louisiana Tumor Registry confirms that cancer rates in the St. John the Baptist Parish are in the 'bottom 25 percent' among Louisiana parishes in its most recent report."

"DPE is in compliance with its air permits and applicable law," the company said.

According to the EPA, chloroprene, a monomer that becomes polychloroprene (or neoprene), is "likely to be carcinogenic to humans," a determination made in 2010.

Approximately 20 percent of the total population living within two-and-a-half miles of the Denka facility in LaPlace are children younger than 18 years, and between about 800-1,000 are children younger than five, according to the EPA.

"And children under the age of 16 are particularly vulnerable to mutagenic carcinogens like chloroprene," the EPA/DOJ complaint states. "Denka's chloroprene emissions reach more than 300 young children who attend the 5th Ward Elementary School, located within approximately 450 feet of Denka's facility."

Approximately 1,200 children who attend East St. John High School, located roughly a mile-and-a-half north of Denka, also are allegedly exposed to the facility's chloroprene emissions, according to the EPA.

And about 60 percent of the parish residents are Black, according to the Louisiana Department of Environmental Quality.

"We allege that Denka's emissions have led to unsafe concentrations of carcinogenic chloroprene near homes and schools in St. John the Baptist Parish," said Associate U.S. Attorney General Vanita Gupta. "The Justice Department's environmental justice efforts require ensuring that every community, no matter its demographics, can breathe clean air and drink clean water.

"Our suit aims to stop Denka's dangerous pollution."

DPE claims the EPA is taking "an unprecedented step" in deviating from its permit and rulemaking authority, in alleging an "emergency based on outdated and erroneous science that the agency released over 12 years ago."

"We believe it is critical the best available science is used to protect human health and the environment," said DPE LaPlace plant manager Jorge Lavastida. "The people of St. John the Baptist Parish deserve current and accurate scientific information regarding health risks in their community.

"This unprecedented lawsuit will only scare people unnecessarily in the name of politics."

Residents of St. John the Baptist Parish filed a civil rights complaint against the Louisiana Department of Environmental Quality on April 6, 2022, alleging that the LDEQ "discriminates on the basis of race in violation of Title VI of the Civil Rights Act of 1964."

The LDEQ is fighting the civil suit.

"Emissions reductions at Denka has been one of our top priorities at (Louisiana Department of Environmental Quality), and EPA is now building on the steps LDEQ took five years ago and our continuing efforts to reduce chloroprene emissions from the Denka facility," said LDEQ Sec. Chuck Carr Brown.

The crux of the litigation, ongoing for more than a decade, is the contested chloroprene emissions at the plant.

The EPA alleges the concentrations around the plant, via air monitoring conducted by both the EPA and Denka over the past several years, "consistently show long-term chloroprene concentrations in the air near Denka's LaPlace facility that are as high as 14 times the levels recommended for a 70-year lifetime of exposure."

Denka, using another model (presented in 2021 to the EPA) to measure chloroprene emissions, has stated that its studies demonstrate chloroprene levels as much as "130 times" lower than what the EPA has measured.

In litigation filed Jan. 11 by Denka, the Japanese chemical company sued the EPA for "declaratory and injunctive relief" from the EPA's methodology.

(EPA Administrator) Regan is named in the lawsuit along with the federal organization, and is "being sued in his official capacity," Denka states.

"Prior to EPA's (Feb. 28) lawsuit, DPE filed a legal challenge urging the agency to consider the best available science in its review of chloroprene," the company said March 3. "DPE previously requested that EPA reconsider its refusal to consider the best available science and DPE is now challenging EPA's denial in court."

In assessing the potential risks of chloroprene for the past roughly dozen years, EPA often has stressed the importance of considering and applying the best available science on risk assessment, Denka states in the Jan. 11 lawsuit.

"However, in actually setting risk-based requirements for chloroprene, EPA has refused to consider what the agency admits is the best available scientific information," Denka stated. "EPA's reason? The agency simply declares that it is not a priority and that it has no obligation to do so.

"EPA is wrong."

The Jan. 11 lawsuit, also filed in the U.S. District Court for the Eastern District of Louisiana, came just weeks after a Dec. 22, 2022, "final order" and consent agreement issued by the U.S. EPA to Denka.

The Dec. 22 consent decree issued by the EPA alleges that Denka "failed to make a hazardous waste determination" on the choloroprene emissions, and the ramifications contained within the consent agreement—including related waste management and disposal programs—were set to take effect Jan. 31, according to the consent agreement.

It was not immediately clear if those mandates have been exercised by the EPA.

Remedies and modifications made by Denka will be subject to EPA review, according to the consent agreement, and the EPA reserves the right to assess a civil penalty of "not more than $25,000, and increased for inflation, per day of noncompliance for each violation."

Denka continues to claim that the emission toxicity of the chloroprene monomer—a colorless liquid with an ether-like odor used in making neoprene for wetsuits, orthopedic braces and laptop sleeves, among other applications—has been vastly overestimated in past U.S. EPA on-site measurements.

Specifically, the U.S. EPA has used an IRIS, or integrated risk information system approach (developed in 2010), to measure chloroprene emissions.

The EPA, Denka states, had at one time accepted the application of an alternative "physiologically based pharmaco-kinetic" (PBPK, 2021) measurement model.

The latter model allegedly showed the relative level of health risk from chloroprene to be as much as 130 times lower than the IRIS assessment, according to Denka.

However, in a March 14, 2022, letter to Denka, the EPA rejected adoption of the PBPK model on the grounds that "there was no obligation to incorporate more recent science into the assessment."

And since its acquisition of the chloroprene rubber manufacturing business from DuPont in 2015, DPE said it has "consistently operated" in compliance with regulatory emissions standards.

DPE said it "regularly measures the concentration of substances in the atmosphere" around its plants and provides information on environmental measures to local residents and other stakeholders.

The LaPlace plant is the only neoprene manufacturing facility in the U.S., according to DPE.

Denka Performance Elastomer is a joint venture between Tokyo-based Denka Co. Ltd. (70 percent) and Mitsui Co. Ltd. (30 percent, also out of Tokyo).

Denka employs about 230 people at the facility, representing the second-largest private employer in the 42,500-person parish.