EPA drops civil rights investigation in Louisiana polymer projects

The U.S. Environmental Protection Agency  will not pursue civil rights investigations into two Louisiana governmental departments for their issuance of permits for chemical plants near St. John the Baptist and St. James parishes, predominantly Black areas.

The original complaint, filed in January 2022 by the Concerned Citizens of St. John, names the Louisiana Department of Environmental Quality, the Louisiana Health Department, Denka Performance Elastomer L.L.C. and Formosa Plastics Inc. for allegedly downplaying toxic air emission measurements.

The decision to drop the civil rights investigations came as a shock to the members of CCSJ, who filed the complaint based on Title VI of the Civil Rights Act of 1964.

"We are terribly disappointed with the decision," Robert Taylor, executive director of the CCSJ, told Rubber News June 28. "At this point, we are regrouping and will decide the next step in light of this decision.

"We are wondering about the whole direction at this point in terms of whether we can rely on or get help from the federal government. Are Louisiana politicians really that powerful? I am still trying to figure this out."

For its part, Denka welcomed the early resolution, at least to the civil rights complaints.

"Today's decision by EPA to close its ill-conceived civil rights investigation is a reminder that the agency should turn its resources and attention to science, not politics," Denka said in a June 28 statement to Rubber News. "DPE continues to vigorously defend itself against EPA's unprecedented lawsuit against the company, yet the agency continues to ignore DPE's dramatically reduced chloroprene emissions—as verified by a continuous fenceline monitoring system — as well as the company's repeated calls to apply the best available science for the benefit of the community."

The lawsuit filed by the Department of Justice on behalf of the EPA in February is ongoing.

Those involved say the EPA may be leaning on this lawsuit to effect the fenceline cleanups it wants to see at Denka, Formosa and 150 other plants, all subject to new emissions regulations proposed in April by the EPA.

Many of the plants sit along an 85-mile stretch of land between Baton Rouge and New Orleans called the Mississippi River Chemical Corridor, colloquially known as "Cancer Alley."

The June 27 announcement by the EPA to eschew the investigations was filed in the same federal court in Lake Charles where CCSJ filed its complaint along with Earthjustice, a non-profit dedicated to litigating environmental and public health issues.

And according to CCSJ members, the addendum represents an about-face for the EPA in the matter.

The agency decided in October 2022 to move forward with an "informal resolution agreement" (with the investigations as part of the process) with the Louisiana Department of Environmental Quality and the Louisiana Health Department to resolve air toxicity issues.

The EPA, at the time, said it had unearthed evidence of "environmental racism," as it believed the two agencies (along with Denka and Formosa, which are cited in the complaint though not as defendants) downplayed the magnitude of the air quality and health threats to the residents of the Louisiana parishes.

"EPA issues this letter to present significant evidence suggesting that the departments' actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish and the Industrial Corridor," EPA said in its Oct. 12, 2022, letter to the heads of each department.

EPA could not be immediately reached for comment.

"We appreciate the care and the careful way in which the EPA handled the complaints," Greg Langley, press secretary with the LDEQ, told Rubber News June 28. "We are happy to be done with it and we are going to move on.

"We will continue to work with EPA and the people and industries in the industrial corridor to improve air quality as we continue to do our jobs."

Langley added that the informal dispute resolutions had a cut-off date of July 1, and that the EPA did not believe that a resolution was possible by then "as other information had come to light."

Langley declined to expand on the "other information."

An upcoming Supreme Court case on Title VI may be playing into the EPA's apparent retreat in the matter, according to Taylor.

The original civil rights complaint, accepted for investigation by the EPA April 6, named LDEQ and LDH as principle offenders.

Denka Performance Elastomer and FG LA LLC, or Formosa Plastics of St. James Parish, were named further down as part of the complaint. For Formosa, the complaint regarded 14 permits for a proposed extension known as the "sunshine project."

Formosa has planned a $9.4 billion resin manufacturing project in St. James.

Specifically in St. John, where Denka is located in LaPlace, residents claim they have been exposed to high levels of chloroprene (and other pollutants, including ethylene oxide) for years, resulting in the "highest cancer risk from air pollution in the nation," according to the nonprofit CCSJ.

As such, the group asked the EPA and Department of Justice to intervene, filing a 77-page administrative complaint against LDH and LDEQ in January 2022.

The complaint alleged that the two state organizations violated Title VI of the Civil Rights Act and essentially are complicit in "environmental racism," as "people of color are disproportionately affected."

In addition, the complaint stated that LDH and LDEQ were liable because they receive federal funding for their chemical plant-permitting processes.

"LDEQ and LDH have violated that prohibition by subjecting Black residents of St. John the Baptist Parish to disproportionate air pollution and related harms from various facilities, including ethylene oxide from various sources and chloroprene from a neoprene production facility," the complaint states.

CCSJ further alleged that local and state agencies ignored the group's desire to move an elementary school from its proximity to Denka.

"Children are particularly vulnerable to the health consequences of toxic air pollution, and one of the parish's elementary schools, Fifth Ward Elementary, is located three blocks from Denka," CCSJ states.

Denka said at the time there was no basis for the filing.

"The 'crisis' [that] Earthjustice (a conglomerate of St. John and St. James parish representatives) seeks to accuse the Louisiana Department of Health and the Louisiana Department of Environmental Quality, Denka Performance Elastomer and other industrial companies of causing in its complaint simply does not exist," Jim Harris, a spokesperson for Denka, told Rubber News in May. "There are no widespread elevated cancer rates in St. John the Baptist Parish compared with the state average."

Taylor said the EPA's June 27 refusal to investigate is an abdication of its duties to protect the citizens of Louisiana.

"This resistance from Louisiana in challenging our civil rights ... I am just blown away," Taylor said. "They are giving the government pause to protect the rights of all citizens of this country.

"This is terrible information for us, that the government has been threatened and is acquiescing to the petrochemical industry. To me, they (the chemical industry) are winning this. And our civil rights department can't stand firm to life, liberty and happiness while the Black people in Cancer Alley are being sacrificed."

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

Denka sued the EPA Jan. 11, 2023, for "declaratory and injunctive relief" from what it believes is EPA's archaic measuring methodology on toxic emissions.

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, 2022, 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, 2023, lawsuit from Denka, filed its Feb. 28 lawsuit 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.

This ongoing 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 and retroactive to the Dec. 22, 2022, consent decree.

The ongoing EPA lawsuit also names DuPont Specialty Products USA L.L.C., Denka's landlord, as a defendant.

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

The EPA alleges the concentrations around the Denka plant, via air monitoring conducted by both the EPA and Denka over the past several years, "consistently shows 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 inhalation unit model (presented in 2021 to the EPA) to measure chloroprene emissions, has stated that chloroprene levels are as much as 130 times lower than what the EPA has measured.

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.

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.