EPA Renews Bid for Rare Shutdown Order in Denka Emissions Fight

The battle over chloroprene limits in Louisiana’s most polluted industrial corridor is zigzagging between district and appellate courts, shining a spotlight on the EPA’s emissions crackdown in “Cancer Alley” and the use of a rare Clean Air Act action that could shutter a petrochemical plant’s operations.

The Environmental Protection Agency on Sept. 17 moved to resurrect a case at the US District Court for the Eastern District of Louisiana to temporarily halt operations at Denka Performance Elastomer LLC’s Louisiana plant, utilizing the Clean Air Act’s Section 303—a little-used provision that allows the agency to order a shutdown or ask for one from federal courts.

In a novel argument, the agency claims that Denka’s chloroprene emissions put the surrounding community of St. John the Baptist Parish in immediate danger, using Section 303 for the first time in response to elevated cancer risk.

Denka, in a response filed Sept. 24, isn’t opposed to re-opening the case, but balks at agency assertions that there’s a need to move quickly in the face of emergency.

“Most recently, EPA inexplicably waited six weeks after the Fifth Circuit issued the stay on July 31 to ask this Court to renew this emergency litigation,” according to the company’s response. “That conduct continues to belie the existence of a real emergency in this case.”

The Japanese company also said in a statement Sept. 24 that it’s committed to continue the legal fight against “the unfounded fears that EPA seems determined to foment” and “the gross misuse of taxpayer resources involved in supporting EPA’s politically motivated crusade.”

‘Unfounded’ Emergency

The request joins a thicket of legal action centered around new EPA rulemaking that establishes tougher limits and compliance timelines for Denka, the US’s only synthetic rubber plant.

The neoprene manufacturer has been working to quash the rule, claiming that the agency is putting unfair and poorly explained burdens specifically on Denka operations.

The EPA succeeded in defeating a request to freeze the rule at the US Court of Appeals for the District of Columbia Circuit, only to have Louisiana officials extend Denka’s compliance deadline to two years—replacing the EPA’s expedited 90-day mandate. The US Court of Appeals for the Fifth Circuit sanctioned the extension.

But the Department of Justice, which represents the agency, says that Denka’s emissions pose an imminent risk to public health: the threshold that is required to launch emergency action under Section 303.

This emergency provision—included in the law since its creation in 1970—acts a pollution fail-safe, allowing the EPA to immediately shutter operations that it’s established as an immediate danger. Alternatively, instead of issuing an order, the agency can turn to federal courts by bringing a case for shutdown.

The EPA last called upon the provision to shutter a contested US Virgin Islands refinery. The St. Croix facility, formerly called Limetree, plagued nearby residents with years of industrial accidents and safety hazards.

When one accident caused oil to rain down on nearby residents, the EPA ordered a May 14, 2021, shutdown of the plant under 303, marking the fourth time the provision had been used.

High Cancer Risk

Though Denka argues there is no danger—imminent or otherwise—the EPA is hinging its arguments on assertions that chloroprene emissions from the facility are much higher than what is deemed a safe threshold, and threatens the health of thousands of Parish residents.

“Exposure to these concentrations is linked to excess cancer risks that are multiples higher than the EPA’s and other United States regulatory agencies’ presumptive 1-in-10,000 upper threshold for so-called ‘acceptable’ lifetime excess cancer risk,” according to the agency’s motion to reopen its endangerment case.

Eastern District of Louisiana Judge Carl J. Barbier paused the first round of the case pending the release of EPA chloroprene rules, and set an Oct. 15 compliance deadline.

Earthjustice attorney Deena Tumeh said the dangers of the plant have been plaguing St. John the Baptist residents “for far too long.”

“But Denka has worked out an illegitimate way to avoid compliance by that date,” according to Tumeh, who represents clients intervening on behalf of the EPA in Denka litigation. “So we’re glad to see that EPA takes the situation seriously and won’t leave the communities of St. John behind.”

The EPA said in a statement that the agency has no further information to provide on this pending litigation.

The case is United States v. Denka Performance Elastomer LLC, E.D. La., No. 2:23-cv-00735, Denka response to motion 9/24/24.