Denka: ‘Best available science' should govern proposed EPA rule

LAPLACE, La.—The scope of the recently proposed EPA rule to drastically reduce emissions from chemical plants is massive, potentially affecting more than 200 companies that produce the more than 80 chemicals to be regulated under the EPA's proposed guidelines.

Most of the facilities covered by the proposal are owned by large conglomerates, including Japan-based Denka Performance Elastomer L.L.C., in front of which EPA Administrator Michael Regan introduced the proposed rule April 6.

Framed by a seemingly bucolic setting along the east bank of the Mississippi River, Regan stood in front of the DPE plant in St. John the Baptist Parish to announce "stringent" thresholds for companies from the Ohio Valley to Texas, from Louisiana to the Florida panhandle.

"The proposal would dramatically reduce air toxics-related cancer risks for people who live near approximately 200 plants across the country that make synthetic organic chemicals," Regan said.

The location chosen by Regan and the EPA for the announcement was not by accident.

For more than a decade now, DPE and the federal organization have been embroiled in litigation to force DPE to reduce its chloroprene emissions in both its production processes and its storage and elimination capacities.

"Denka Performance Elastomer will review and make appropriate comments to the proposed draft announced on April 6," the firm told Rubber News April 10. "DPE's position remains to ensure the best available science is used in future regulations governing its St. John the Baptist Parish neoprene facility."

The EPA will take written comments for 60 days after the proposal is published in the Federal Register, estimated to be by March 29, 2024.

EPA then will conduct a virtual public hearing 21 days after publication.

Facilities that make, store, use or emit ethylene oxide, chloroprene, benzene, 1,3-butadiene, ethylene dichloride or vinyl chloride would be required to monitor levels of these air pollutants entering the air at the fencelines of their facilities.

Many other chemicals are contained within the proposed rule for emissions capture, however these six chemicals are flagged for fenceline measurements.

"This powerful tool helps make sure EPA's rules deliver: if annual average air concentrations of the chemicals are higher than an action level at the fenceline, owners and operators would have to find the source and make repairs," the 444-page proposed rule states.

And the proposed inhalation unit thresholds vary depending on which of the six "focus" chemicals are being measured.

For EtO, EPA is proposing a level of 0.2 micrograms per cubic meter of air. For chloroprene (used by DPE to produce polychloroprene, or neoprene), the threshold would be 0.3 micrograms per cubic meter of air.

An emissions measurement model was developed jointly by DPE and EPA in 2021, though the EPA has not used the model, choosing instead to revert to a model developed in 2010.

"The agency has so far refused to review and incorporate the new study in its assessment of health risks related to chloroprene, despite acknowledging it provides a more accurate understanding of risk," Jorge Lavastida, DPE executive officer and plant manager in LaPlace, told Rubber News.

"We believe it is critical (that) the best available science is used to protect human health and the environment. The people of St. John the Baptist Parish deserve current and accurate scientific information regarding health risks in their community."

The EPA proposal essentially would update 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 proposed rule centers on EtO and chloroprene, though it would cover 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 would 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 would 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 would cut chloroprene emissions by 74 percent nationwide, compared to estimated emissions for 2020.

Venting, flare stacks (used to burn off chemicals), definitions for disposal, storage units and new thresholds for fenceline measurements all are proposed within the rule changes released April 6.

Rubber News has published a list of the more than 200 chemical companies listed by the EPA that could be subject to provisions of the proposed 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 proposed 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 would provide transparency, EPA said, for nearby communities about what is coming out of the plants.

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

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

"EPA expects the proposal to reduce disproportionate harm to several groups of people who are often overburdened by pollution," the EPA said. "The agency analyzed the makeup of communities near the plants covered by the proposals. It found that those communities have a higher-than-average percentage of residents who are African American, low income and/or Hispanic or Latino."

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

"Because children's bodies are growing, some chemicals are more likely to harm them," EPA states. "Those chemicals include EtO and chloroprene, both of which damage DNA."

A webinar and information session on the proposed rule for synthetic organic chemical plants and polymers and resins plants will take place April 13 at 7 p.m. EST. Register here for this webinar.

EPA will conduct a separate webinar May 1 about its proposed actions to reduce exposure to EtO from commercial sterilization facilities and health care facilities.

For information about that webinar, visit the general EPA website.

EPA estimates the costs of implementing its new rules at "approximately $501 million in total capital costs" and approximately $190 million a year in total annualized costs.

"The vast majority of facilities covered by the proposal are owned by large corporations," the EPA proposal states. "As such, the cost of implementing the proposal would be less than 1 percent of their annual national sales."

The EPA admits it is not able to estimate the monetary value of reducing toxic air emissions, including EtO and chloroprene.

"This means the agency cannot estimate the full dollar value of the benefits the proposal would yield, including the benefits of reducing the risk of cancer from exposure to those chemicals," the agency said in the proposed rule.

The litany of litigation between EPA and DPE goes back more than a decade.

Denka sued the EPA Jan. 11 for "declaratory and injunctive relief" from what it believes is EPA's archaic measuring methodology.

The Jan. 11 lawsuit, 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 EPA to Denka.

The Dec. 22 consent decree 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.

On behalf of the EPA, the U.S. Department of Justice, following the Jan. 11 lawsuit from Denka, then filed a complaint Feb. 28 with the U.S. Attorney's Office for the Eastern District of Louisiana alleging that Denka 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 the Dec. 22, 2022, consent decree.

In a March 3 email to Rubber News, Denka disputed the "unprecedented, politically motivated allegations of community endangerment."

Denka added that in January, Louisiana Sens. Bill Cassidy and John Kennedy sent a letter to EPA urging the agency to reevaluate its assessment of chloroprene and stating in part, "an update of the cancer risk assessment for chloroprene should be a national priority" and "would resolve a key source of uncertainty for the Louisiana Department of Environmental Quality and Louisiana communities."

Similarly, Denka claims EPA's Region 6 administration asked the agency to review the chemical's risk assessment in 2021.

Denka contends that the most recent report on cancer incidents published by the Louisiana Tumor Registry (from 2022) shows cancer rates in the parish in which DPE is located are among the "bottom 25 percent" of Louisiana parishes.

"And there are too few cases of the cancers alleged by EPA to be possibly linked to chloroprene to report in all of the parish's census tracts," the firm told Rubber News.