The Dow Chemical complex, in Iberville Parish, along La. 1 on Saturday, July 15, 2023. The plant in Plaquemine, Louisiana, was the scene of a large fire and explosions late Friday.
A challenge to a federal assessment of the cancer risk for a chemical produced in Louisiana used to manufacture goods ranging from antifreeze to detergents has been rejected by a U.S. court of appeals.
The challenge of the cancer risk assessment for ethylene oxide by a Texas petrochemical manufacturer, the American Chemistry Council and the was rejected on Tuesday by the U.S. Circuit Court of Appeals for the District of Columbia.
It ruled that EPA correctly rejected an alternative study by the Texas Commission on Environmental Quality that found less cancer risk. EPA’s risk assessment concluded that for people living near petrochemical facilities emitting the toxic gas, the maximum lifetime individual risk of cancer from exposure to ethylene oxide was four times what the agency considers acceptable. The Texas agency’s study concluded the risk of cancer from ethylene oxide exposure was 3,000 times lower than EPA’s estimate.
“EPA addressed and rejected petitioners’ arguments in detail, and petitioners fail to show that in doing so EPA acted arbitrarily, capriciously, or otherwise contrary to law,” Circuit Judge Brad Garcia wrote in an opinion joined by Senior Circuit Judge Judith Rogers and Circuit Judge Karen Henderson. Garcia was appointed by President Joseph Biden, Rogers by Bill Clinton, and Henderson by George H.W.
Bush. The Louisiana Chemical Association and attorneys for the risk assessment challengers did not respond to requests to comment. Ethylene oxide is a chemical used in the manufacture of antifreeze, detergents, plastics and textiles, and as a sterilizing agent for food and medical equipment.
EPA’s risk assessment was used to support 2022 changes in EPA’s Miscellaneous Organic Chemical Manufacturing emission rules that required major reductions in ethylene oxide emissions from Huntsman Petrochemical LLC of Conroe, Texas, which had paired with the two industry groups in challenging the assessment. The new rules apply to 201 petrochemical plants nationwide, including 18 in Louisiana, most of them located along the Mississippi River in the corridor labeled “Cancer Alley” by environmental groups. Those include Dow Chemical in Plaquemine, two Exxon Mobil facilities in Baton Rouge and Honeywell International facilities in Baton Rouge and Geismar.
While Denka Performance Elastomers is one of the companies covered by that rule, the company's ethylene oxide emissions are minimal, according to EPA information. There are separate lawsuits involving the company's emissions of chloroprene, another likely cancer-causing chemical, which fall under different recent federal requirements. The EPA cancer risk assessment for the chemical was part of an 18-year process that began in 1998 and included several rounds of public comment and a peer review by EPA’s Science Advisory Board.
The EPA’s 2016 comprehensive report on the chemical concluded there was strong evidence that inhalation of ethylene oxide increases the risk of certain cancers, and relied in part on statistical modeling of rates of lymphoid and breast cancer, which had been linked to ethylene oxide exposure in a National Institute for Occupational Safety and Health study of sterilizer workers. The EPA modeling included reviewing as many as 17,000 cancer cases. The three-judge panel rejected the challengers' arguments in part by giving EPA an “extreme degree of deference” in its evaluation of scientific data within its area of expertise.
It also found that the Texas study’s model did not fit the data used by EPA, in part by not properly reflecting differences in exposure rates. The panel had earlier rejected a challenge of the EPA risk assessment under a recent U.S.
Supreme Court ruling overturning what has been called “Chevron deference,” which now limits courts from giving deference to federal agencies' interpretation of their own rules. In this case, the Justice Department’s attorneys argued, the court’s deference was not aimed at interpreting the emissions rule but in accepting EPA’s risk assessment science conclusion. In its decision, the panel also said the rule challengers failed to raise that question during their original challenge.
Among the environmental groups that intervened in the legal challenge on behalf of EPA are the New Orleans-based Louisiana Bucket Brigade, Louisiana Environmental Action Network, and RISE St. James, as well as national groups the Environmental Integrity Project, Environmental Justice Health Alliance for Chemical Policy Reform, Sierra Club and the Union of Concerned Scientists. Intervening on behalf of Huntsman were the U.
S. Chamber of Commerce, National Association of Manufacturers, the Ethylene Oxide Sterilization Association and Sterigenics U.S.
, LLC.
