Three years after federal regulators reported that emissions from a St. John the Baptist Parish chemical plant were creating the highest cancer risk from airborne pollutants of any place in the U.S., thousands of residents are suing for tens of millions of dollars in restitution.
More than 3,800 residents living in towns west of New Orleans are plaintiffs in cases against Denka Performance Elastomer, the owner of a plant along the Mississippi River that is the only producer in the U.S. of chloroprene, a likely carcinogen used to make wet suits and other consumer products.
Altogether, there are 10 lawsuits winding their way through the courts. Of those, seven are identical mass tort suits filed in state court by a team of lawyers who allege that plant owners knew for years that the high levels of chloroprene released into the air around the plant could cause cancer and other health issues for residents there.
And attorneys for the plaintiffs argue that the low-income, mostly black residents were never told about the risks they faced.
The lawsuits come amid a broader debate among residents, local politicians, plant officials, and state and federal regulators about what responsibility Denka has for alleged health issues in the parish, and for cutting emissions to levels deemed safe by the Environmental Protection Agency.
The suits are also among the biggest efforts by the people of St. John to fight one of the massive industrial plants that were pitched as job creators but brought pollution — and potentially cancer — along with them.
The parent of a student at Fifth Ward Elementary School in Reserve has filed a lawsuit against the St. John the Baptist Parish School Board, d…
The EPA deemed chloroprene a likely carcinogen in 2010 and said the “upper limit of acceptability” for human health was a maximum long-term exposure to 0.2 micrograms per cubic meter. Ambient readings in the area near Denka’s plant since 2016 have shown levels as high as 153 micrograms per cubic meter — 765 times higher than what the EPA says could be a dangerous level long-term.
Since 2016, the plant has cut emissions by about 73 percent and has argued that the EPA levels are too onerous. But residents, who argue that community members have suffered from higher-than-normal rates of leukemia and other cancers for years, say the plant needs to drop emissions to the EPA's recommendation.
"It's a carnage," said St. John resident and environmental activist Robert Taylor, who is a plaintiff in one of the suits.
Plaintiffs in the state cases have agreed not to seek more than $50,000 in damages, a tactic aimed at keeping the cases in the hands of local judges. Most residents say that amount is too little for them to relocate, but their broader goal is to force the plant to adhere to guidelines set by the federal government and not more lenient state standards.
“I would rather my health than the $50,000, and the health of my children,” said 51-year-old Demetria Bailey, one of the plaintiffs. “But what motivated me was to get this pollution corrected.”
Company officials say the plant has always stayed within regulatory bounds for its emissions, and their lawyers argue that the residents have waited too long to file their suits and haven't proved the link between chloroprene and cancer or other health issues.
The allegations are “devoid of any specific mention of how the plaintiffs were purportedly harmed, annoyed, inconvenienced, frightened, or afflicted in any way by alleged chloroprene exposure,” said Denka in response to the plaintiffs’ claims in the seven identical petitions.
Jim Harris, a spokesman for Denka, said the company doesn't comment on pending litigation. However, the company has made "progress" in lowering pollution after installing new technology, he said.
"The company has seen significant reductions in its emissions as well as lower ambient air concentrations at sites outside the facility," he said.
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A history of pollution
On a recent afternoon, Larry Sorapuru Jr., a St. John the Baptist Parish councilman, drove with Taylor along the Mississippi River and the chemical plant’s western border in Reserve, listening while his passenger pointed at a home left vacant because all its occupants had died.
Sorapuru and Taylor, the president of the grass-roots organization Concerned Citizens of St. John, have long suspected that the plant’s fumes were dangerous to the people who live in its shadow.
Many complained for years about the plastic, industrial smell that wafted into their homes depending on the direction of the wind, a stench that some said burned their eyes and caused others to gasp for breath.
In December 2015, the EPA released a National Air Toxics Assessment that found that emissions from the plant caused the highest potential risk of cancer from airborne pollutants of any place in the country.
When the EPA report came out, Sorapuru became more convinced that the chloroprene emissions were responsible for cancers and other ailments that have made his friends and neighbors sick.
Among them is Lydia Gerard, a 63-year-old clerical worker, who has an autoimmune disease and regularly breaks out into hives for "no apparent reason." She’s also complained of vertigo, anemia and inexplicable swelling in her face and lips. Her husband developed kidney cancer at 64.
Now, Gerard, Taylor and Sorapuru are all lead plaintiffs in three separate lawsuits against Denka. Gerard's and Taylor's suits are in state court, while Sorapuru's has been transferred to federal court.
“It is very hard to walk around the community and tell people it’s going to be OK," said Sorapuru. "I can’t say that.”
In total, the community’s legal claims are represented by 10 lawsuits that have been filed against the plant in the past year and a half, including one in federal court seeking class-action status for people suffering from respiratory-related medical problems, and a wrongful-death suit filed in state court.
The families of three children and one young adult who died of cancer and other illnesses in St. John the Baptist Parish are among the plainti…
The latter was filed by the families of 20 children and young adults who say the plant has caused birth defects and cancer.
Some unable to move
Roughly 43,000 people live in St. John the Baptist Parish; about 57 percent of them are black.
Attorney Joseph M. Bruno said that about 40,000 people who live or have lived within the vicinity of the plant may have been exposed to what he called “excessive amounts” of chloroprene.
Some residents have moved away over the years and are now living in other parishes or other neighborhoods farther from Denka. But many residents say they don’t have the means to pack up and get out, or to send their kids or grandchildren to schools farther away.
Others don’t think they should have to.
David Sanders, 61, lives in the same house his family built over 100 years ago, before E.I. du Pont de Nemours and Co. — the owner of the plant's land, and former owner of the chloroprene unit — in 1969 began using the St. John plant to produce the chemicals that create Neoprene, a synthetic rubber used in wet suits, sports shoes and medical braces.
The land the plant now sits on formerly was a dairy farm. Around the corner were a grocery store and a filling station, not too far from a barroom and motel.
Supporters of industry, including the Port of South Louisiana and St. John the Baptist Parish President Natalie Robottom, have praised the company for setting up roots in a parish that was hungry for jobs.
And it did bring jobs — as recently as 2016, Denka employed 235 workers at the chloroprene plant.
But over time, as the chemical plant’s production grew, the area saw other changes.
Most of the homes on Sanders’ street are abandoned. Many of those who are left complain about everything from cancer to thyroid problems to respiratory issues.
“Man, my mother, my father died with cancer. My sister died with cancer — I got another sister with brain cancer,” Sanders said recently. “My uncle, he died with cancer. Just about everybody up and down this street are gone.”
Sanders said 90 percent of his neighbors have signed on to the lawsuits.
He hasn’t because he’s skeptical of lawyers. But he still wants Denka gone.
“The only way we would benefit is if Denka would pack up and just leave. With no compensation or no nothing — just pack up and leave,” Sanders said. “You know with the damages you’ve already done, it can’t be undone.”
Yet again, researchers are finding that communities along the Mississippi River between Baton Rouge and New Orleans are at a greater risk for …
‘Serious disturbance of health’
Activists say the plant’s former owner could have made changes as long ago as 1941, when it published an internal memo — one marked “personal and confidential” — that said clinical and experimental studies showed certain concentrations of the chemical’s “toxic vapors, gases or fumes” might “eventually cause serious disturbance of health.”
That was almost 30 years before DuPont began producing chloroprene in St. John Parish.
The company's report wasn’t given to scientists with the federal government until 1992.
It took until 2010 for the EPA to reclassify chloroprene as a "likely carcinogen” in a study that said a lifetime exposure above 0.2 micrograms per cubic meter of air puts people at increased risk of getting cancer.
In 2015, Denka, a company that had operated out of Japan, bought the plant from DuPont.
By the following year, the National Air Toxics Assessment study had come out and the EPA had started monitoring emissions. The readings came in at hundreds of times above the 0.2 microgram threshold, and the plant’s new owners sought to calm residents' fears.
In meetings and public statements, the company promised to voluntarily reduce chloroprene emissions by 85 percent from 2014 numbers, when 120 tons were released through smoke stacks.
Engineers and other officials spent the better part of 2017 retrofitting the plant with more than $35 million worth of equipment aimed at reducing the discharge.
Harris, the company spokesman, said he expected 2018 and early 2019 readings, which aren't yet calculated, will show the company met its 85 percent reduction goal.
Many readings in 2018 showed little or no chloroprene in the air at all, but there were also occasional spikes. One of those reached 77.3 micrograms per cubic meter, a reading that’s 386.5 times the level the EPA says is dangerous for long-term exposure.
By the end of 2018, average readings showed that the company had decreased ambient pollution across all locations by about 73 percent since mid-2016.
Even though the readings aren’t close to the 0.2 number, the company’s plant manager, Jorge Lavastida, has touted the reductions. The company doesn’t agree with the EPA’s guidance and has said it won’t ever reach the level called for by the federal agency.
However, Wilma Subra, a scientist with the Louisiana Environmental Action Network, said the 2018 readings are still “really high.”
“They knew 85 percent wasn’t going to get them there,” Subra said, referencing the EPA advisory. “They refused to do any additional pursuing of control technology to reduce it even more.”
Sorting out the truth is difficult, in part because the long-term effects of chloroprene exposure are still not well understood.
Even measuring risk is made difficult by variables such as the proximity of an exposed person to the point of pollution, the body's ability to metabolize the chemical, and the tendency for chloroprene levels to spike and dip with weather and the plant’s production.
Dr. LuAnn White, a toxicologist at Tulane University, has pointed to data from the Louisiana Tumor Registry that showed no higher incidence of cancer in the region than elsewhere in the state.
And from a regulatory standpoint, Greg Langley, a spokesman for the Louisiana Department of Environmental Quality, underscores that the 0.2 micrograms level is not an enforceable threshold.
There is currently no federal or state standard for how much ambient air pollution the plant can cause, and current permits — which are under review — allow the plant to emit 200 tons of chloroprene a year, far above what the plant currently puts out.
“There is no smoking gun in St. John Parish,” Langley has often said.
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‘They have a wallet’
The legal assault against Denka was born in a small circle of concerned citizens, scientists and lawyers who include Sorapuru, Subra and John Cummings, a retired trial lawyer and founder of the country’s first U.S. slavery museum at the Whitney Plantation, located on 250 acres in St. John Parish.
When the EPA came to visit and relay results of the NATA report, Sorapuru called “about 25 lawyers,” he said.
Cummings, a nationally recognized disaster lawyer who has led several class-action settlements, was one of them.
He organized lawyers from LaPlace and New Orleans — including state Rep. Randal Gaines, D-LaPlace — and by the summer of 2017, 13 residents of St. John filed a lawsuit against the facility's current and previous owners to reduce or stop chloroprene production.
That lawsuit sought class-action status but was denied after being transferred to federal court when Judge Martin Feldman said the plaintiffs’ lawyers had missed a key deadline.
At that point, according to Hugh Lambert, another lawyer involved, he and other attorneys made the strategic decision that the federal suit would “focus on injunctive relief,” while state lawsuits could aim at Denka from a different legal angle.
So, the lawyers separated a case for St. John resident Lydia Gerard from the 13 plaintiffs and filed another lawsuit in state court over fear of chloroprene in April.
From there, the lawsuits kept coming as news spread: Eighty-five plaintiffs filed a state court petition in late May; another thousand filed in June; 2,171 filed in July; 299 filed in mid-September and 319 in late September.
The basis of the seven related lawsuits is the same: fear of cancer, as well as the nuisance and civil battery (a wrongful act that results in damage) caused by an alleged increased risk of cancer from chloroprene exposure.
The lawsuits are spread out over several mass torts rather than as a single class action in order to “test the different provisions of law” and to keep the legal fight in state court, where lawyers think they might find a more sympathetic audience and set of laws, Lambert said.
Denka and DuPont — which is also named in the suits — have fought back, saying the petitions should all be dismissed because the lawyers missed a one-year prescriptive deadline to argue the claims.
They also argue that the suits fail to make a case for nuisance, negligence or liability and that they are too vague about linking chloroprene exposure to any kind of injury.
“Plaintiffs’ petitions all follow the same boilerplate formula, alleging only that plaintiffs have suffered 'one or more' of a long list of generic symptoms (including those as common as headache, baldness and insomnia), without specifying which injuries they allegedly suffered, when they suffered them, or how defendants’ conduct supposedly caused these injuries,” Joshua Doguet, a lawyer for DuPont, wrote in a recent filing.
The plant’s request to dismiss the lawsuits will be heard by ad hoc judge Edward Leonard on March 26, along with a motion by the plaintiffs asking that all cases be heard by Leonard, in St. John.
In the meantime, Lambert said, the lawsuits might be the only recourse for residents who have long been at risk from the chemical plant next door.
While each plaintiff isn't set to reap a massive cash windfall, the total damage to Denka could be significant. From the seven state lawsuits, the company risks losing up to $193.7 million in damages.
“Corporations like DuPont or Denka don’t have a heart or soul. They have a wallet,” Lambert said. “We’re grabbing them by their wallets, and their hearts and minds and souls will follow.”
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