Jeff Landry appears at controversial Louisiana plant, challenges federal rule on cancer risk

Gov. Jeff Landry appeared at one of the country's most controversial chemical plants on Monday to announce his administration's legal challenge to a new federal rule aimed at reducing cancer risks, but which he says will unnecessarily hurt jobs and the economy.

The U.S. Environmental Protection Agency rule, announced by the Biden administration in April, would require major emissions reductions from plants up and down the Mississippi River and elsewhere in the state and nation.

The rule would cut emissions of six likely human carcinogens from 51 chemical plants and refineries in Louisiana and, across the nation, eliminate tens of thousands of tons of toxic and smog-forming air pollutants. The smog reductions alone would save nearly $770 million in health costs, federal regulators say.

Flanked by the state's attorney general, environmental chief and others, however, Landry decried EPA's application of the new rule on Denka Performance Elastomer, a Reserve chemical plant that has been the frequent focus of the Biden administration. He also detailed new legal action against the federal agency.

Landry, Attorney General Liz Murrill and Aurelia Giacometto, Landry's environmental chief, criticized EPA's decision to require Denka to comply with the new rule for chloroprene emissions within 90 days or risk a shutdown while the agency has given other operations affected by the new limits on other chemical emissions two years to comply.

"This is a great example of the way the Biden administration has actually targeted American workers and companies ... wanting to transpose those jobs and those products to China," he said during the news conference at Denka. "Because where we are right here at Denka is the only manufacturing facility of neoprene in the United States."

The rule will also affect facilities including the ExxonMobil Chemical, Honeywell and Formosa Plastics plants in Baton Rouge; Chalmette Refining; and the Westlake Vinyls, Lion Copolymer, BASF and other plants in in Geismar.

Denka Performance Elastomer is the North American arm of a Japanese company, Denka Company Limited. Neoprene is a synthetic rubber material used in gloves, diving wetsuits, automotive parts, other commercial products and military applications, but results in emissions of chloroprene, a likely human carcinogen.

Chloroprene has been the focus of political and legal wrangling for nearly a decade since the EPA announced new, higher cancer risks for the chemical.

In connection with the new court filing from the state, Giacometto's state Department of Environmental Quality on Thursday used federally delegated authority to grant Denka a two-year extension to comply with the EPA's new chloroprene rule while the state also challenges the EPA rule itself.

The move came after a request from Denka to DEQ on April 19 for a delay so it could install new equipment and complete tests showing it would sufficiently reduce emissions.

Michelle Helfrich, Denka’s plant manager, said the necessary improvements require physical changes to the plant that her company can’t complete in three months, or by Oct. 15. She called the timeframe "completely unrealistic and unreasonable."

Murrill said that the state's authority to grant the two-year extension will end on July 15, when the new EPA rule takes effect. But state officials hope the new petition they’ve filed in the U.S. Court of Appeals for the District of Columbia would keep the extension in place.

She said state officials contend the new rule, which also applies to potent carcinogens like ethylene oxide, is arbitrary and capricious. The one-page filing on Monday contends the rule is illegal, with more complete briefs expected by the end of the month.

Denka is a top property taxpayer and employer in St. John the Baptist Parish, with about 250 employees. A handful of employees attending the new conference on Monday cheered Landry’s appearance at the Mississippi River plant, while Sen. Greg Miller, R-Norco, echoed the governor's comments about the facility’s importance to the economy and local tax coffers.

But Denka is also located near neighborhoods and an elementary school, and is not far from a high school.

EPA says the chloroprene emissions pose particular concern for growing children by accumulating in their bodies and quickly elevating their cancer risk.

In court papers last year, the EPA said newborns breathing Denka’s current emissions, for example, will receive double their lifetime acceptable cancer risk in their first two years of life, going the remainder of their lives with genetic damage leading to elevated and continually rising cancer risk.

The announcement at Denka came just days after a federal appellate panel from the same Washington, D.C., circuit court refused to block the federal rule's 90-day application to Denka in an earlier petition from the company.

The EPA said in a statement that it "will not stop following the science and the law and taking actions to protect this community from harmful emissions."

"The agency has taken important steps to mitigate the health impacts of the Denka facility and in Cancer Alley," it said, using the term activists use to describe the heavily industrialized stretch along the Mississippi River between New Orleans and Baton Rouge.

"EPA’s final rule will significantly reduce toxic air pollution from chemical plants, including ethylene oxide and chloroprene. The rule slashes more than 6,200 tons of toxic air pollution each year, dramatically reducing the number of people with elevated cancer risk due to toxic air pollution in communities surrounding plants covered by the rule."

Arguing before the D.C. appellate court in late May, Denka said the EPA's new rule treated Denka differently from dozens of other plants under the rule's purview and from past practice by the agency, while asserting that the plant would have to shut down.

In an order filed Wednesday, the appellate panel wrote that Denka had "not satisfied the stringent requirements for a stay pending court review."

Landry said, however, that the state’s new petition is expected take advantage of the U.S. Supreme Court’s ruling last week to end the longstanding ”Chevron deference” doctrine. Based on mid-1980s court precedent, the now-defunct doctrine gave federal agencies broad authority to interpret and apply laws without courts’ overturning those decisions.

“I think it’s going to have tremendous impact on the ability of agencies to target American workers in the way that it’s done over the last several years,” Landry said.

If the EPA prevails, Denka will be required to cut 98% of its chloroprene emissions by Oct. 15.

Denka and state officials say the company has already made dramatic reductions of the chemical following tens of millions of dollars in investments, cutting them by 90%, but EPA says that work hasn't gotten the operation's releases low enough.

Denka and other chemical plants in Louisiana point to the state's tumor registry to argue their operations are not increasing cancer risks. But the authors of the registry stress that it is not equipped to answer those kinds of questions, nor does it account for other types of illnesses.

U.S. Rep. Troy Carter, who represents the area, said he continued to back the EPA's moves to cut cancer risks, including at the Denka plant.

“Louisianans deserve to breathe clean air and drink clean water without fear for their health,” Carter said in a statement. “My district has the highest cancer risk of any place in the United States – that is unacceptable. We must pursue proper regulations."

The Louisiana Chemical Association, however, lauded Landry's appearance at Denka and his administration's legal challenge.

"While we fully support measures to protect the health and safety of our communities, the EPA’s ruling imposes an unrealistic and immediate deadline that threatens to dismantle a critical part of Louisiana industry," Greg Browser, head of the association that represents the chemical industry in Louisiana, said in a statement.

Editor's note: This story was updated on July 2 to add comments from U.S. Rep. Troy Carter and the Louisiana Chemical Association.