Taylor v. Denka Performance Elastomer LLC, CIVIL ACTION NOS. 17-7668

• Decision Date: 26 July 2018
• Docket Number: CIVIL ACTION NOS. 17-7668,c/w 18-5739
• Citation: 332 F.Supp.3d 1039
• Parties: Robert TAYLOR, Jr., et al. v. DENKA PERFORMANCE ELASTOMER LLC, et al.
• Court: U.S. District Court — Eastern District of Louisiana

332 F.Supp.3d 1039

Robert TAYLOR, Jr., et al.

v.DENKA PERFORMANCE ELASTOMER LLC, et al.

CIVIL ACTION NOS. 17-7668

c/w 18-5739¹

United States District Court, E.D. Louisiana.

Signed July 26, 2018

Hugh Palmer Lambert, Cayce Christian Peterson, Lambert Firm, APLC, Eberhard D. Garrison, Gladstone N. Jones, III, Harvey Sylvanous Bartlett, III, Kevin Earl Huddell, Lindsay E. Reeves, Lynn E. Swanson, Jones, Swanson, Huddell & Garrison, LLC, John J. Cummings, III, Cummings & Cummings, PLC, Joseph M. Bruno, Bruno & Bruno, Morgan M. Embleton, The Lambert Firm, New Orleans, LA, Darryl Jude Tschirn, Law Office of Darryl J. Tschirn, La Jolla, CA, Randal Leroy Gaines, Randal L.Gaines Law Office, LaPlace, LA, for Robert Taylor, Jr., et al.

James Conner Percy, Justin J. Marocco, Michael R. Rhea, Jones Walker, Baton Rouge, LA, Brett S. Venn, Jones Walker, New Orleans, LA, Michael A. Chernekoff, First City Bank, Houston, TX, for Denka Performance Elastomer LLC, et al.

SECTION "F"

ORDER AND REASONS

MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

Before the Court are two Rule 12 motions: (1) Denka Performance Elastomer LLC's motion to dismiss; and (2) E.I. du Pont de Nemours and Company's motion to dismiss. For the reasons that follow, DuPont's motion is GRANTED, and Denka's motion is GRANTED without prejudice to the plaintiffs' opportunity to amend their deficient nuisance allegations in their complaint.

Background

This environmental tort litigation arises from the production of neoprene, which allegedly exposes those living in the vicinity of the manufacturing plant to concentrated levels of chloroprene well above the upper limit of acceptable risk, resulting in a risk of cancer

more than 800 times the national average. Thirteen people living in what environmentalists and the media have dubbed "Cancer Alley" filed this lawsuit seeking injunctive relief in the form of abatement of chloroprene releases from their industrial neighbor, the Pontchartrain Works facility, the only facility in the United States still manufacturing a synthetic rubber called neoprene, which is made from chloroprene, which the Environmental Protection Agency has classified as a "likely human carcinogen."

These facts are drawn from the allegations advanced in the second amended complaint. E.I. Dupont de Nemours & Co. invented neoprene in 1931. Neoprene is a synthetic rubber used in chemical and weather resistant products such as wet suits and orthopedic braces

. It is also used as a base resin in adhesives, electrical insulation, and coatings. In 1969, DuPont built a neoprene manufacturing unit at its Pontchartrain Works facility in LaPlace, Louisiana. Chloroprene, a component of neoprene, is manufactured at the site. During the manufacturing process, chloroprene is emitted into the air and discharged into the water.

By 2008, DuPont had consolidated its neoprene production to its Pontchartrain Works facility (PWF), which is now the only facility manufacturing neoprene in the United States. Effective November 1, 2015, DuPont sold the PWF to Denka Performance Elastomer LLC (DPE or Denka), but DuPont retained ownership of the land underlying the facility.

It is alleged that as early as 1988 DuPont knew "of the deleterious effects of exposure to chloroprene emissions," and that DPE had the same knowledge of such harms when it bought the Pontchartrain Works facility. It is alleged that both DuPont and DPE concealed from the Environmental Protection Agency (EPA) and the Louisiana Department of Environmental Quality (LDEQ) their knowledge regarding chloroprene's harmful effects. In 2010, the EPA classified chloroprene as a "likely human carcinogen." In its Integrated Risk Information System assessment of chloroprene, the EPA explained that chloroprene was "likely to be carcinogenic to humans' [sic] through a mutagenic mode of action and that the primary exposure route of concern is the inhalation pathway." Additionally, the EPA has noted that

[s]ymptoms reported from acute human exposure to high concentrations of chloroprene include giddiness, headache, irritability, dizziness, insomnia, fatigue, respiratory irritation, cardiac palpitations, chest pains, nausea, gastrointestinal disorders

, dermatitis, temporary hair loss, conjunctivitis, and corneal necrosis.... Acute exposure may [also]: damage the liver, kidneys, and lungs; affect the circulatory system and immune system; depress the central nervous system (CNS); irritate the skin and mucous membranes; and cause ... respiratory difficulties in humans.

In December 2015, the EPA again classified chloroprene as a likely human carcinogen when it released a screening-level National Air Toxics Assessment (NATA), which analyzes exposure levels to toxins, estimates the expected number of incidences of cancer

per one million people based on exposure to air toxins from industry, and also announces an upper limit of "acceptable risk" threshold.² The NATA acceptable risk exposure threshold for chloroprene was established as 0.2 µg/m³; that is, chloroprene emissions must stay below .2 micrograms per cubic meter³ in order to comply with the limit of acceptable risk threshold (which is a risk of 100 in one million people).

Despite knowledge of this upper limit of the acceptable risk threshold for exposure to chloroprene concentrations, it is alleged that DPE continues to emit chloroprene at hundreds of times the 0.2 µg/m³ threshold. It is alleged that, historically, the Pontchartrain Works facility emitted chloroprene air emissions well in excess of the 0.2 µg/m³ threshold. Since May 25, 2016, the EPA has collected 24-hour air samples every three days from six locations around the Pontchartrain Works facility; air samples at all six locations are frequently up to 700 times the 0.2 µg/m³ threshold, or more.⁴ DPE's own sampling numbers at five locations surrounding the facility indicate that average chloroprene emissions range from 20.4 to 33.25 times the 0.2 µg/m³ threshold.

The EPA's National Enforcement Investigation Center (NEIC) conducted a Clean Air Act (CAA) inspection of the Pontchartrain Works facility in June 2016.⁵ 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 DPE 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 appropriate emissions factors in air permit application materials; and failure to institute appropriate emissions controls for the chloroprene Group I storage tank.

On January 6, 2017, DPE entered into an Administrative Order on Consent (AOC) with LDEQ with a target to reduce its chloroprene emissions by 85 percent. Even if this reduction is achieved, the plaintiffs allege that DPE's emission levels will nevertheless exceed the 0.2 µg/m³ threshold. In any event, it is alleged that DPE has failed to meet all interim requirements for emission controls and emissions concentrations that it agreed to in the AOC.

According to the EPA, "[t]he top 6 census tracts with the highest NATA-estimated cancer

risks nationally are in Louisiana due to Denka (formerly DuPont) chloroprene emissions." The NATA assessment reports that the cancer risk for the census tracts in the vicinity of the Pontchartrain Works facility is 3.365 per million, while the cancer risk from chloroprene exposure in those census tracts ranges from 158.515 to 768.46 per million, all well above the acceptable risk level recommended by the EPA.

Instead of reducing chloroprene emissions in compliance with the EPA's 0.2 µg/m³ threshold, on June 26, 2017, DPE representatives submitted a Request for Correction to the EPA in which they sought to increase the 0.2 µg/m³ threshold in order "to prevent further significant damage to" their business.⁶ It is alleged the DPE representatives have lobbied members of the U.S. Congress to undermine the EPA and support reduction or removal of emissions restrictions at the facility.

Robert Taylor, Jr., individually and on behalf of his minor daughter, N.T., Kershell Bailey, Shondrell P. Campbell, Gloria Dumas, Janell Emery, George Handy, Annette Houston, Rogers Jackson, Michael Perkins, Allen Schnyder, Jr., Larry Sorapuru, Sr., Kellie Tabb, and Robert Taylor, III are all individuals living near PWF in Reserve, Edgard, and LaPlace, Louisiana. On June 29, 2017, these individuals, individually and as representatives of a putative class of similarly situated plaintiffs, sued Denka Performance Elastomer LLC and E.I. DuPont De Nemours and Company in the Louisiana 40th Judicial District Court in St. John the Baptist Parish. The plaintiffs allege that DuPont has emitted chloroprene for many years at levels resulting in concentrations many times the upper limit of acceptable risk, and DPE continues to do so. The plaintiffs advance Louisiana state law causes of action for nuisance, trespass, negligence, and strict liability; they seek injunctive relief in the form of abatement of chloroprene releases such that the concentration of chloroprene does not exceed the 0.2 µg/m³ threshold; damages for deprivation of enjoyment of occupancy of property; punitive damages; and additional damages including medical monitoring to the extent personal injury claims become mature.⁷

The defendants jointly removed the lawsuit, invoking this Court's diversity jurisdiction. The Court denied the plaintiffs' motion to remand.⁸ The plaintiffs filed an untimely request to extend the deadline to seek class certification, which the defendants opposed. The Court denied the plaintiffs' request to extend the deadline to seek class certification, and later denied the plaintiffs' motion to reconsider its ruling. See Order and Reasons dtd. 2/22/18 (denying plaintiffs' motion to reconsider, denying the plaintiffs' untimely motion for class certification, and granting DuPont's ...