Denka Performance Elastomer Challenges EPA’s Preliminary Injunction Motion

Published 2:40 pm Thursday, July 20, 2023

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LAPLACE – Denka Performance Elastomer today filed its opposition to a Preliminary Injunction (PI) motion previously submitted by the U.S. Environmental Protection Agency in its lawsuit against the company.

In the file, DPE strongly disputes the EPA’s motion, stating “while basing its case on invalid assumptions, EPA disregards the real-world evidence showing that the Facility’s chloroprene emissions do not pose any increased cancer risk.”

The filing also challenges the agency’s attempt to make demands on DPE based on the agency’s interpretation of what constitutes an “imminent and substantial endangerment” under Section 303 of the Clean Air Act (“CAA”).

According to DPE officials, EPA’s allegations directly contradict years of health data relating to St. John the Baptist Parish where the facility is located, comprehensive studies of workers in the U.S. chloroprene industry showing no connection between chloroprene and cancer, the best available science on the potential risks of chloroprene and the agency’s own prior statements.

In addition, DPE’s motion underscores the fact that the facility’s current emissions have dropped sharply in recent years and are now the lowest in its history—over 85% lower than as recently as 2014, and approximately 96% lower than the levels found for several decades before that.

In the filing, DPE also argues that EPA both relies upon older, unrepresentative monitoring data and disregards recent data that most accurately reflects current – and dramatically reduced – emissions.

In another example of the flawed science underlying EPA’s unprecedented request for emergency relief, the agency deploys a risk model based exclusively on 25-year-old laboratory studies of female mice, which overestimates health risks associated with the chemical by over 30 times compared to best available science, according to DPE’s filing.

“We are very proud of the innovative solutions that our company has safely developed and implemented to achieve historic lows in our facility’s emissions.” said DPE’s Executive Office and Plant Manager Jorge Lavastida.

“EPA’s unprecedented action is politically driven, unsupported by real-world science, and outside its legal authority under the Clean Air Act. The Agency must acknowledge DPE’s extensive emission reductions and recognize the real-world data that demonstrates the facility’s current emissions do not pose a health emergency,” said DPE counsel Jason Hutt, the chair of Bracewell LLP’s Environment, Lands and Resources practice.

In a separate filing, DPE recently submitted comments on EPA’s Proposed Chloroprene Emissions Rule, warning that the agency’s own data showed that the rule would cause substantially more environmental harm than the claimed health benefits.  Using EPA’s own methodology for evaluating the environmental impacts of pollution, DPE states the agency’s proposed rule would result in a significant increase in emissions of CO2 and other greenhouse gases, exceeding 135,000 tons per year, causing environmental harm impacts more than 40 times higher than the health benefits EPA claims according to its own methodology.