Saying that plaintiffs' attorneys missed a key deadline, a federal judge in New Orleans last month ruled that a lawsuit seeking damages from Denka Performance Elastomer for releasing dangerous levels of chloroprene into the air in St. John the Baptist Parish will not be certified as a class action.
U.S. District Judge Martin Feldman is also considering a motion by the company's attorneys to dismiss the suit altogether.
Feldman's ruling means that even if the lawsuit goes forward, the legal proceedings likely won't have as far-reaching implications for St. John residents as some had hoped.
Lawyers for the St. John residents could still appeal to the 5th Circuit Court of Appeals. But without a reversal by the appeals court, the lawsuit would be limited to 13 residents who filed it in July.
The plaintiffs include Robert Taylor II, the leader of an activist group called Concerned Citizens of St. John, and St. John the Baptist Parish Councilman Larry Sorapuru.
Chloroprene — a chemical used to create the synthetic rubber neoprene — has been produced at the LaPlace plant for many years. Neoprene is used to make products like wetsuits, sports shoes and medical braces.
Denka bought the plant in 2015 from E.I. du Pont de Nemours and Co., a company also named in the suit.
Controversy began after 2010, when the U.S. Environmental Protection Agency reclassified chloroprene as a "likely carcinogen." Agency scientists said exposure above 0.2 micrograms per cubic meter of air puts people at increased risk of getting cancer.
In December 2016, the EPA released its National Air Toxic Assessment, which found that emissions from the plant cause the highest potential risk of cancer from airborne pollutants of any place in the country.
Spikes in emissions have reached up to 765 times the risk-based threshold, according to data collected by the EPA. The most recent numbers, in February, showed spikes of 166 times that number. Some measurements, however, show little to no chloroprene.
The lawsuit asks that Feldman order the plant to stop or reduce production until emissions no longer exceed the EPA's risk-based standard, said Eberhard Garrison, an attorney for the residents.
The residents are not seeking damages for physical injuries but are for various other issues, including lost property value and "emotional distress" resulting from "release of excessive concentrations" of the chemical.
The suit says residents have a "justified fear of development of cancer due to chloroprene exposure."
Denka's attorneys, however, have asked the judge to throw out the suit. Lawyer Justin Marocco said the residents failed to show that the chemical has caused them "irreparable injury" or that any alleged injury they have suffered outweighs the damage an injunction would cause the chemical plant.
Forcing the plant to dramatically reduce or halt production "could ultimately result in the shuttering of the ... facility," Marocco said.
State regulators, in the meantime, say the long-term effects of chloroprene exposure are still not well understood.
Initially filed in state 40th Judicial District Court, the suit requested that it be extended to cover anyone who has lived, worked or attended school within a defined boundary surrounding the facility from 2011 to the present. It was up to the court to determine if the petition met the criteria to become a class action.
When the case was kicked over to federal court, Feldman was tasked with determining class-action status. However, in late February, he ruled that the case no longer qualified for that because the residents' lawyers had missed a key 91-day deadline for the request.
The lawsuit was moved from state to federal court on Aug. 9, which is when Feldman and the company's lawyers said the clock started ticking for a class action request. That would have put the deadline at Nov. 8. The residents' lawyers didn't apply until Jan. 9.
However, Garrison and his colleagues said the deadline should have been moved back to February because Denka's lawyers had filed a later motion amending their initial request to have the case transferred to federal court.
Feldman, who ruled that the case should stay in federal court, disagreed. He denied the request for an extension and then upheld that ruling in February.
"Even viewed through the 'less stringent' lens ... the plaintiffs fail to persuade the court to reconsider its determination that their request to extend the deadline within which to seek class certification was untimely and unsupported by good cause," Feldman wrote.
Lawyers for the plaintiffs and for Denka declined to comment.