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Butler v. Denka Performance Elastomer LLC

United States District Court, E.D. Louisiana

June 6, 2019

JUANEA L. BUTLER, individually and as representative of all others similarly situated
v.
DENKA PERFORMANCE ELASTOMER LLC, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is E. I. du Pont de Nemours and Company's Rule 72(a) appeal of the magistrate judge's order on plaintiff's motion for leave to file second amended class action petition. For the following reasons, DuPont's request for relief is GRANTED and the magistrate judge's April 16, 2019 Order is REVERSED in relevant part.

         Background

         This environmental tort litigation arises from the production of neoprene at the Pontchartrain Works Facility (“PWF”) in St. John the Baptist Parish. During the manufacturing process, neoprene production allegedly exposes those living in the vicinity of the PWF to concentrated levels of chloroprene, a “likely human carcinogen.”

         Juanea L. Butler has lived in LaPlace, Louisiana since 1998. She sued the Louisiana Department of Health (“DOH”), the Louisiana Department of Environmental Quality (“DEQ”), Denka Performance Elastomer LLC (“Denka”), and E.I. DuPont de Nemours and Company (“DuPont”) seeking class certification, damages, and injunctive relief in the form of abatement of chloroprene releases from her industrial neighbor, the PWF. These facts are drawn from the allegations advanced in her Class Action Petition for Damages, originally filed on June 5, 2018 in the 40th Judicial District Court for St. John the Baptist Parish.[1]

         Effective November 1, 2015, DuPont sold the PWF to Denka, but DuPont retained ownership of the land underlying the facility. In December 2015, the Environmental Protection Agency (“EPA”) released a screening-level National Air Toxics Assessment (“NATA”), and classified chloroprene as a likely human carcinogen. EPA's NATA evaluation suggested an acceptable risk exposure threshold for chloroprene: 0.2 µg/m³; that is, chloroprene emissions should stay below .2 micrograms per cubic meter[2] to comply with the limit of acceptable risk threshold (which is a risk of 100 in one million people).

         The EPA held its first Parish community meeting to discuss the potential chloroprene emission issues on July 7, 2016. At that meeting, a DOH representative advised that children should not breathe chloroprene. In August of 2016, Denka began 24-hour air sampling every six days. Samples collected at five sampling sites are and continue to exceed the 0.2 µg/m³ threshold. According to Denka's own sampling numbers for chloroprene concentrations, the average chloroprene concentration across all sampling sites from August 2016 to March 2017 has ranged from 4.08 µg/m³ to 6.65 µg/m³.

         The EPA has noted that, in addition to the high risk of cancer from exposure to chloroprene, symptoms include

headache, irritability, dizziness, insomnia, fatigue, respiratory irritation, cardiac palpitations, chest pains, nausea, gastrointestinal disorders, dermatitis, temporary hair loss, conjunctivitis, and corneal necrosis.
The EPA has further detailed that
acute exposure may: damage the liver, kidneys, and lungs; affect the circulatory system and immune system; depress the central nervous system; irritate the skin and mucous membranes; and cause dermatitis and respiratory difficulties in humans.

         On October 7, 2016, Denka submitted modeling results for chloroprene concentrations surrounding the PWF to the Louisiana Department of Environmental Quality (“DEQ”) for the period of 2011 through 2015, showing concentrations well above the 0.2 µg/m³ threshold. At a meeting on December 8, 2016, DEQ Secretary Chuck Brown dismissed those expressing concern about the chloroprene concentrations as “fearmongerers” and said “forget about 0.2[µg/m³].”

         The EPA's National Enforcement Investigation Center (“NEIC”) conducted a Clean Air Act (“CAA”) inspection of the Pontchartrain Works facility in June 2016. 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 Denka 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 ...


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