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Taylor v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

October 31, 2018

ROBERT TAYLOR, JR., ET AL
v.
DENKA PERFORMANCE ELASTOMER LLC, ET AL

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the defendant's motion to dismiss under Rule 12(b)(6). For the following reasons, the motion is DENIED.

         Background

         This environmental tort litigation arises from the production of neoprene at the Pontchartrain Works Facility (“PWF”) in St. John the Baptist Parish. Neoprene production allegedly exposes those living in the vicinity of the PWF to concentrated levels of chloroprene well above the upper limit of acceptable risk, and may result in a risk of cancer more than 800 times the national average.

         Thirteen people living St. John the Baptist Parish filed this lawsuit originally seeking injunctive relief in the form of abatement of chloroprene releases from their industrial neighbor, the PWF. The PWF is the only facility in the United States still manufacturing neoprene, which is made from chloroprene, and which the Environmental Protection Agency has classified as a “likely human carcinogen.”

         These facts are drawn from the allegations advanced in the Third Amended and Restated Complaint. E.I. Dupont de Nemours & Co. (“DuPont”) invented neoprene in 1931. Neoprene is a synthetic rubber used in chemical and weather resistant products such as wet suits and orthopedic braces. It is also used as a base resin in adhesives, electrical insulation, and coatings. In 1969, DuPont built a neoprene manufacturing unit at its Pontchartrain Works facility in LaPlace, Louisiana. Chloroprene, a component of neoprene, is manufactured at the site. During the manufacturing process, chloroprene is emitted into the air and discharged into the water.

         By 2008, the PWF was the only facility manufacturing neoprene in the United States. Effective November 1, 2015, DuPont sold the PWF to Denka Performance Elastomer LLC, but DuPont retained ownership of the land underlying the facility.

         It is alleged that Denka had knowledge of harmful concentrations of chloroprene emitted from the PWF, but concealed its knowledge and associated data[1] from the Environmental Protection Agency (“EPA”), the Louisiana Department of Environmental Quality (LDEQ), and local St. John the Baptist Parish officials. The EPA, in addition to classifying chloroprene as a “likely human carcinogen” has noted that

[s]ymptoms reported from acute human exposure to high concentrations of chloroprene include giddiness, headache, irritability, dizziness, insomnia, fatigue, respiratory irritation, cardiac palpitations, chest pains, nausea, gastrointestinal disorders, dermatitis, temporary hair loss, conjunctivitis, and corneal necrosis.... Acute exposure may [also]: damage the liver, kidneys, and lungs; affect the circulatory system and immune system; depress the central nervous system (CNS); irritate the skin and mucous membranes; and cause...respiratory difficulties in humans.

         The agency has also concluded that the primary route of exposure to chloroprene is through inhalation.

         In December 2015, the EPA again classified chloroprene as a likely human carcinogen when it released a screening-level National Air Toxics Assessment (NATA), which analyzes exposure levels to toxins, estimates the expected number of incidences of cancer per one million people based on exposure to air toxins from industry, and also announces an upper limit of “acceptable risk” threshold.[2] The NATA acceptable risk exposure threshold for chloroprene was established as 0.2 µg/m³; that is, chloroprene emissions must stay below .2 micrograms per cubic meter[3] in order to comply with the limit of acceptable risk threshold (which is a risk of 100 in one million people).

         Despite knowledge of this upper limit of the acceptable risk threshold, it is alleged that DPE continues to emit chloroprene at hundreds of times the 0.2 µg/m³ threshold. Since May 25, 2016, the EPA has collected 24-hour air samples every three days from six locations around the Pontchartrain Works facility; air samples at all six locations frequently exceed 700 times the 0.2 µg/m³ threshold. DPE's own sampling numbers at five locations surrounding the facility indicate that average chloroprene emissions range from 20.4 to 33.25 times the 0.2 µg/m³ threshold.

         The EPA's National Enforcement Investigation Center (“NEIC”) conducted a Clean Air Act (“CAA”) inspection of the Pontchartrain Works facility in June 2016.[4] A copy of the redacted inspection report from the EPA's CAA inspection was publicized on April 3, 2017. The NEIC inspection report revealed various areas of non-compliance by both DuPont and DPE in their operation of the facility, including failure to adhere to monitoring, recordkeeping, and reporting requirements for the chloroprene vent condenser; failure to replace leaking valves; failure to include appropriate emissions factors in air permit application materials; and failure to institute appropriate emissions controls for the chloroprene Group I storage tank.

         On January 6, 2017, DPE entered into an Administrative Order on Consent (“AOC”) with LDEQ with a target to reduce its chloroprene emissions by 85 percent. Even if this reduction is achieved, the plaintiffs allege that DPE's emission levels will nevertheless exceed the 0.2 µg/m³ threshold. In any event, it is alleged that DPE has failed to meet all interim requirements for emission controls and emissions concentrations that it agreed to in the AOC.

         According to the EPA, “[t]he top 6 census tracts with the highest NATA-estimated cancer risks nationally are in Louisiana due to Denka (formerly DuPont) chloroprene emissions.” The NATA assessment reports that the cancer risk for the census tracts in the vicinity of the Pontchartrain Works facility is 3.365 per million, while the cancer risk from chloroprene exposure in those census ...


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