After sending investigators into the Denka Performance Elastomer plant for five days last year to find out why it was discharging troubling amounts of chloroprene into the air, the Environmental Protection Agency has found that the LaPlace chemical manufacturer potentially violated the Clean Air Act about 50 times, according to a report.
Chloroprene is a chemical categorized by the EPA as a "likely carcinogen."
The draft report is the result of a compliance investigation ordered by the federal agency last summer to determine whether the plant broke environmental laws. The probe continues while regulators get feedback from the company and decide whether to take action. Denka is contesting some of the findings.
According to the report, investigators found an alarming number of leaky valves, as well as inadequate oversight of large portions of the plant’s complex operations.
Denka bought the plant from DuPont in late 2015. It uses chloroprene to produce neoprene, a synthetic used to make wetsuits, orthopedic braces, electric insulation and other products.
The site inspection was conducted in June 2016, six months after the EPA released its National Air Toxic Assessment, which estimates exposure for 180 air toxins nationwide. The study found that, because of the Denka plant's emissions, residents of St. John the Baptist Parish have the highest potential risk of cancer from airborne pollutants of any county in the country.
Although the plant has been producing chloroprene within permitted limits for decades — and has been cited before by the EPA during routine compliance investigations — the findings in the National Air Toxic Assessment created a new urgency to better understand the plant’s operations and prompted a series of actions by the EPA and the state Department of Environmental Quality.
Initially, the agencies started working together to monitor air quality around the plant. When data started coming back showing high levels of chloroprene, the state in January entered into a consent decree with the company, in which Denka agreed to retrofit the plant and reduce emissions by 85 percent before the end of 2017.
Air monitoring in recent months has shown that the plant has subjected some residents to 88 times the concentration of chloroprene in the air that the EPA says puts people at increased risk for cancer.
Denka officials have said they believe there are errors in the report and have reserved the right to contest its findings. Ultimately, the plant could incur fines or other penalties, but only if the EPA makes a final determination that the company did indeed break the law. Such a finding could take years.
Despite progress already underway, the EPA findings have raised new concerns for scientists with the Louisiana Environmental Action Network, who have been analyzing the chloroprene-related data the agency releases.
Among the most egregious findings, according to scientist Wilma Subra, is the company's alleged failure to address multiple chemical leaks coming from faulty or compromised valves.
The report says inspectors last year observed "open-ended lines," meaning with no caps, on pipes "throughout the plant." Some of the pipes were labeled as containing toluene, another toxic chemical that can produce harmful effects in people's livers, kidneys and lungs.
Altogether, inspectors identified 31 valve leaks, according to the report. Sixteen leaks were found to be coming from uncapped lines, and inspectors noticed possible leaks from parts of the plant meant to burn off chloroprene emissions and destroy the chemical before it reaches the air.
Subra said such violations could be the source of recent spikes in chloroprene emissions, contributing to overall high average concentrations of the chemical in the parish's air.
The EPA also found potential “areas of noncompliance” with 17 other sections of federal environmental law.
In one part of the report, inspectors underscored that in recent years, about 10,000 components of the plant weren’t properly monitored for leaks or other problems.
Further, the EPA found that Denka didn't properly calculate chloroprene emissions coming from the plant, in part because the company was using instruments that were unable to read the high levels.
Subra said Denka officials could technically face criminal charges if the company is found to have been negligent or to have purposely put residents “in imminent danger or death.” The maximum criminal penalty, according to the EPA website, is 15 years of jail time and $500,000 in fines. Civil settlements can be much higher.
That sanction is unlikely, however, as Subra said most Clean Air Act violations are resolved after negotiations with either no significant penalty or with civil fines, usually amounting to less than $50,000.
It’s unclear what sanctions, if any, will be imposed in this case. Jorge Lavastida, the plant manager, said the company is working with federal and state regulators "to resolve what we believe to be significant errors in the report.”
Denka said, among other things, that inspectors failed to take into account automatic cutoff valves, meaning some uncapped pipes in fact weren't emitting high levels of chemicals.
Other open-ended lines, Lavastida said, were "exempt" from a requirement for a plug or cap because of "safety issues associated with materials that may spontaneously polymerize."
Altogether, the company objected to at least one potential citation in all 18 categories of violations outlined by the report.
Further, Jim Harris, a company spokesman, said most of the issues flagged by the EPA relate to now-outdated procedures in use before Denka bought the plant from its prior owner, DuPont.
That purchase happened in November 2015, just a month before the National Air Toxic Assessment study came out showing problems with chloroprene emissions in the parish.
Company officials further pointed to Denka's "voluntary proactive measures" to reduce emissions, including the plan to spend $17.5 million on retrofitting the plant.
EPA officials, in the meantime, said the organization's policy is not to comment on “enforcement strategy,” but they praised the plant and Louisiana officials for installing new pollution controls before the on-site investigation's results came back.
History of violations
If the company is found to be in violation of the Clean Air Act, it wouldn't be the first time in the plant's history. Documents from routine investigations show that the plant's previous owner, DuPont, had been slapped with fines for failing to comply with federal laws.
According to Subra, past violations are significant, even if they occurred under prior management, because Denka retained 235 of the 240 employees when it purchased the facility from DuPont.
In 2016, records show, the EPA said DuPont "failed to design and maintain a safe facility" because of “accidental releases" of toluene. Those findings came from an inspection done in 2014. The company entered into a consent agreement and agreed to pay $37,500 in a civil penalty.
In 2006, DuPont was found to have violated the Clean Drinking Water Act.
In 1997, the EPA sought a civil penalty of $31,800 from DuPont for violating permit restrictions in producing chloroprene.
The first documented penalty incurred at the facility was in 1976, when DuPont was found to have violated the Clean Water Act and the case was referred to the U.S. Department of Justice. The company paid $15,960 in penalties.
In the past three years, 5,219 of 37,934 chemical and other facilities it regulates throughout Louisiana broke some sort of environmental protection law, according to EPA records. That comes to about one in every seven.
There also could be undetected problems. In 2011, EPA Inspector General Arthur Elkins found Louisiana was among the worst states at enforcing federal clean air, clean water and hazardous waste laws.
In a scathing report, he noted that the EPA generally delegates enforcement of federal environmental laws to state agencies but recommended that the agency either force the state to do a better job or enforce the law itself.
Among other things, Elkins cited "a culture in which the state agency is expected to protect industry."
The state contested the EPA's findings at the time, saying the state agency had been achieving its goal of inspecting all major companies at least once every two years.