United States v. Denka Performance Elastomer LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

CIVIL ACTION

VERSUS

NO. 23-735

DENKA PERFORMANCE

ELASTOMER, LLC and DUPONT SECTION: “J”(5)

SPECIALTY PRODUCTS USA, LLC

ORDER & REASONS

Before the Court is a Motion to Dismiss Denka Performance Elastomer, LLC’s

Counterclaims and First Six Affirmative Defenses for Lack of Subject Matter

Jurisdiction (Rec. Doc. 57), filed by the United States of America (“the United

States” or “the EPA”) and an opposition filed by Denka Performance Elastomer, LLC

(“Denka”) (Rec. Doc. 66). Having considered the motions and legal memoranda, the

record, and the applicable law, the Court finds that the motion should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND

Denka Performance Elastomer, LLC owns and operates a neoprene

manufacturing facility in St. John the Baptist Parish. The United States of America

has sued Denka, arguing that the chloroprene emissions from the facility constitute

an imminent danger to public health in the surrounding communities under Section

303 of the Clean Air Act. The United States argues that the Denka facility is emitting

chloroprene, a known carcinogen, in excess of 0.2 micrograms per cubic meter of air

(“0.2 μg/m3”) thereby endangering the health of the individuals living near the

facility. This 0.2 μg/m3 figure is derived from the EPA’s 2010 Toxicological Review of

Chloroprene (‘2010 Review” or “Review”)1 which was published in the Integrated Risk

Information System (“IRIS”) database. The IRIS is a database which contains

“hundreds of scientific reports developed by EPA’s Center for Public Health and

Environmental Assessment (“Center”) that reflect EPA’s assessment of the dose

response information and human health hazard posed by oral and inhalation

exposure to individual chemicals, groups of chemicals and complex mixtures.” (Rec.

Doc. 57, at 15). Denka attempted to challenge this figure administratively in June

2017 and in July 2021, and the EPA denied both challenges as well as an

administrative petition seeking reconsideration of the second denial (“Denials”).

Having exhausted its administrative remedies, Denka then filed a separate

suit against the United States in this Court challenging the EPA’s 2010 Review and

the EPA’s subsequent Denials of Denka’s administrative challenges to this Review

under the Administrative Procedure Act (“APA”). See Denka Performance Elastomer

LLC v. EPA, No. 23-147 (E.D. La.). The United States moved to dismiss that case for

lack of subject matter jurisdiction, and on the day its response was due, Denka chose

to voluntarily dismiss its case, stating that its counterclaims in the instant matter

were nearly identical to the claims they were voluntarily dismissing. (No. 23-147, Rec.

Doc. 30, at 2). The United States has now moved to dismiss these counterclaims and

Denka’s first six affirmative defenses for lack of subject matter jurisdiction for the

nearly identical reasons it moved for dismissal of Denka’s claims in the related action.

1 The actual figure of 0.2 μg/m3 does not appear anywhere within the 2010 Review.

LEGAL STANDARDS

In deciding a motion to dismiss for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1), “the district court is ‘free to weigh the

evidence and resolve factual disputes in order to satisfy itself that it has the power to

hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). The

party asserting jurisdiction must carry the burden of proof for a Rule 12(b)(1) motion

to dismiss. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.

2011). The standard of review for a motion to dismiss under Rule 12(b)(1) is the same

as that for a motion to dismiss pursuant to Rule 12(b)(6). United States v. City of New

Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003). If a court

lacks subject matter jurisdiction, it should dismiss without prejudice. In re Great

Lakes Dredge & Dock Co., 624 F.3d 201, 209 (5th Cir. 2010). When “a Rule 12(b)(1)

motion is filed in conjunction with other Rule 12 motions, the court should consider

the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Id. (internal quotation marks and citation omitted). To survive a Rule 12(b)(6) motion

to dismiss, the plaintiff must plead sufficient facts to “‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the

plaintiff pleads facts that allow the court to “draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The factual allegations in the

complaint “must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. “[D]etailed factual allegations” are not required, but the

pleading must present “more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678. The court must accept all well-pleaded facts

as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v.

U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). However, “‘conclusory

allegations or legal conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.’” Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439

(5th Cir. 2009) (citation omitted).

DISCUSSION

The United States has moved to dismiss Denka’s counterclaims as well as its

first six affirmative defenses which the United States argues are mis-designated and

are actually also counterclaims.2 These affirmative defenses and counterclaims

largely deal with the same subject matter: Denka’s contentions that the EPA did not

utilize the best scientific data available in creating the 2010 Review and in denying

Denka’s subsequent challenges to this Review and that this failure constituted a

violation of the Administrative Procedure Act. (Rec. Doc. 22, at 17-20, 55-64). The

United States argues that the Court lacks subject matter jurisdiction over the 2010

Review and the Denials because the United States has not waived sovereign

immunity for these particular claims.

2 However, the Court has no need to make this determination due to the lack of subject matter

jurisdiction over these claims as a whole. Whether these claims were properly designated as

affirmative defenses and dismissed under Federal Rule of Civil Procedure 12(f) or re-designated as

counterclaims and dismissed under rule 12(b)(1) does not affect the outcome of this motion.

I. Statute of Limitations

One counterclaim and one affirmative defense can be quickly dealt with before

addressing the merits of the United States’ arguments concerning sovereign

immunity. Denka’s first counterclaim seeks relief on the grounds that “the issuance

and application of the 2010 Review setting a 0.2 μg/m3 1-in-10,000 risk-based value

for chloroprene was arbitrary, capricious, an abuse of discretion, and not in

accordance with law in violation of the APA, because Counterclaim-Defendants failed

to consider the best available scientific data despite concerns raised by qualified peer

reviewers.” (Rec. Doc. 22, at 55). Denka’s first affirmative defense rests on nearly

identical grounds: “In conducting the 2010 Review, EPA was obligated to consider the

best scientific data available to EPA at the time of its decision, and its failure to do

so, resulting in the setting of a 0.2 μg/m3 value for chloroprene, was arbitrary,

capricious, an abuse of discretion, and not accordance with law, in violation of the

APA.” Id. at 17. Both claims rest solely on the issuance of the 2010 Review itself and

do not address the EPA’s subsequent Denials or usage of the information contained

within the Review.

Assuming that the 2010 Review would constitute a final agency action which is

an exception to the United States’ sovereign immunity, the EPA argues that any APA

challenges against it are time barred and have been so since 2016. (Rec. Doc. 57, at

34). The EPA reasons that even if IRIS assessments such as the 2010 Review were

reviewable under the APA, 28 U.S.C. § 2401 would apply to bar these claims. Section

2401 states that “. . . every civil action commenced against the United States shall be

barred unless the complaint is filed within six years after the right of action first

accrues.” The EPA concedes that the EPA’s use of the information contained in the

2010 Review falls outside of this time bar, meaning that only Denka’s first

counterclaim and first affirmative defense challenging the issuance of the 2010

Review would be impacted.

Denka does not seriously dispute that this six-year statute of limitations is

applicable in this case. Instead, Denka argues that “the fact that EPA did not act

sooner to directly enforce the 0.2 μg/m3 standard should not allow EPA to now hide

behind the statute of limitations and avoid judicial review of the 2010 Review and its

resulting 0.2 μg/m3 standard altogether.” (Rec. Doc. 66, at 30). Furthermore, Denka

asserts that it was forced to exhaust its administrative remedies before seeking

judicial review. However, Denka does not explain why this procedural requirement

should affect a statute of limitations proscribed by statute which operates to deprive

the Court of jurisdiction. See Dunn-McCampbell Royalty Interest, Inc. v. National

Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997) (“The applicable statute of

limitations is one such term of consent, and failure to sue the United States within

the limitations period is not merely a waivable defense. It operates to deprive federal

courts of jurisdiction.”). Therefore, Denka’s challenge to the 2010 Review itself is time

barred.

However, “a plaintiff who misses this window may still obtain effective review of

the regulation by instead bringing a challenge within six years of a later final agency

action that applies the regulation to the plaintiff.” Am. Stewards of Liberty v.

Department of Interior, 960 F.3d 223, 229 (5th Cir. 2020). In such a situation,

however, “an agency’s application of a rule to a party creates a new, six-year cause of

action to challenge to the agency’s constitutional or statutory authority.” Dunn-

McCampbell, 112 F.3d at 1287. In other words, a new cause of action attaches to an

agency’s application of a rule, even though a challenge to the initial publication of the

rule may be time barred. Therefore, even though Denka’s challenges to the initial

promulgation of the 2010 Review may be extinguished, Denka’s other counterclaims

are not similarly time barred and only Denka’s first counterclaim and first-

affirmative defense are dismissed for lack of subject matter jurisdiction on this

ground.

II. Sovereign Immunity

The United States argues that this Court lacks subject matter jurisdiction over

Denka’s remaining APA claims because the government has not waived sovereign

immunity. “Absent a waiver, sovereign immunity shields the Federal Government

and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471 (1994). Any such waiver

must be explicitly expressed by Congress via statute, and any perceived waiver of

immunity must be strictly construed in favor of the sovereign. Fort Bend County v.

United States Army Corps of Engineers, 59 F.4th 180, 189 (5th Cir. 2023).

Denka argues that Section 702 of the APA waives sovereign immunity as to its

counterclaims in this matter. (Rec. Doc. 66, at 12). However, the United States asserts

that sovereign immunity has not been waived in this circumstance because the 2010

Review and subsequent Denials do not constitute final agency actions. Because this

Court has already determined that Denka’s challenge of the issuance 2010 Review

itself is time barred, the Court declines to evaluate whether the United States would

otherwise have had sovereign immunity over this claim.

Under Section 702 of the APA, the United States has waived sovereign immunity

for agency actions otherwise subject to judicial review. 5 U.S.C. § 702. See also Fort

Bend County, 59 F.4th at 189; Alabama-Coushatta Tribe of Texas v. U.S., 757 F.3d

484, 488 (5th Cir. 2014). In order to sue under Section 702, two requirements must

be met: first, the plaintiff must point to some “’agency action’ affecting him in a

specific way, which is the basis of his entitlement for judicial review.” Alabama-

Coushatta Tribe of Texas, 757 F.3d at 489. This agency action must also qualify as a

final agency action when the claim in question is brought under the general review

provisions of the APA. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990). A final

agency action is one that, first, “[marks] the consummation of the agency’s decision-

making process—it must not be of a merely tentative or interlocutory nature” and

second, “the action must be one by which rights or obligations have been determined,

or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78

(1997). The second requirement for suit under Section 702 is that the plaintiff must

have “suffered a legal wrong” because of the challenged agency action or have been

“adversely affected or aggrieved by that action within the meaning of the relevant

statute.” Alabama-Coushatta Tribe of Texas, 757 F.3d at 488. Therefore, both of these

requirements must be separately satisfied as to each action Denka is challenging

under the APA.

Denka argues that the EPA took a final agency action when it established the 0.2

μg/m3 standard, “including its denial of [Denka’s] challenges to the 2010 Review from

which EPA derived that standard and EPA’s efforts to enforce that standard.” (Rec.

Doc. 66, at 13). Denka argues that these Denials constitute agency actions “because

they constitute, or are the equivalent of, EPA’s denial of relief specifically provided

for in EPA’s Guidelines.” Id. at 14. Denka argues that these Denials are final actions

because they represent “the consummation of EPA’s decision-making process” and

leave no further room for agency review. Id. at 15.

The United States, however, argues that these Denials do not constitute final

agency actions under the APA because the Denials are nothing more than an exercise

of agency discretion.3 The United States argues that the 2010 Review itself does not

have any independent legal consequences, and therefore, “purely discretionary

evaluations of whether or not to change information in such an underlying document

like the Denials, simply cannot satisfy the second prong of the finality test articulated

in Bennett v. Spear.” (Rec. Doc. 57, at 29). The United States further argues that,

even if the Court considers the Denials to be final agency actions, APA Section

701(a)(2) bars judicial review. Under this section of the APA, there is a presumption

of reviewability, but this presumption does not extend to an agency action that is

committed to agency discretion by law. 5 U.S.C. § 701(a)(2). An agency action is

committed to agency discretion when “the statute is drawn so that a court would have

3 The United States also dedicates room in its brief to discussing why the Declaratory Judgment Act

and 28 U.S.C. § 1331 do not waive sovereign immunity. However, Denka does not contest these

points in its opposition, and therefore there is no need for the Court to address them here.

no meaningful standard against which to judge the agency's exercise of discretion.”

Heckler v. Chaney, 470 U.S. 821, 830 (1985).

The statute at issue in this instance is the Information Quality Act (“IQA”).

Pub. L. 106–554, 114 Stat. 2763, 2763A–153–2763A–154 (2000) (codified at 44 U.S.C.

§ 3516 note). This regulation directs the Office of Management and Budget (“OMB”)

to issue guidelines to federal agencies which shall

(1) apply to the sharing by Federal agencies of, and access to, information

disseminated by Federal agencies; and

(2) require that each Federal agency to which the guidelines apply—

(A) issue guidelines ensuring and maximizing the quality, objectivity,

utility, and integrity of information (including statistical information)

disseminated by the agency, by not later than 1 year after the date of

issuance of the guidelines under subsection (a);

(B) establish administrative mechanisms allowing affected persons to

seek and obtain correction of information maintained and disseminated

by the agency that does not comply with the guidelines issued under

subsection (a); and

(C) report periodically to the Director—

(i) the number and nature of complaints received by the agency

regarding the accuracy of information disseminated by the

agency; and

(ii) how such complaints were handled by the agency.

Id. In compliance with the IQA, the OMB issued guidelines requiring agencies to

establish policies regarding whether and how to correct agency-disseminated

information and create an administrative appeals process to review these decisions.

67 Fed. Reg. 8452, 8459 (Feb. 22, 2002). The OMB guidance also states that

“[a]gencies, in making their determination of whether or not to correct information,

may reject claims made in bad faith or without justification, and are required to

undertake only the degree of correction that they conclude is appropriate for the

nature and timeliness of the information involved, and explain such practices in their

annual fiscal year reports to OMB.” 67 Fed. Reg. at 8458. The United States asserts

that, based on these OMB guidelines, Denka’s administrative challenges to the 2010

Review are fully committed to agency discretion and are outside the jurisdiction of

this Court. (Rec. Doc. 57, at 32).

Denka, however, argues that the United States is pointing to the wrong

guidelines. Denka asserts that the EPA does not have “absolute discretion in

establishing an enforceable emissions standard for chloroprene,” and the standard

the Court should apply in reviewing the 2010 Review and the Denials is instead the

“best available science” standard. (Rec. Doc. 66, at 24). Denka argues that the EPA

has adopted guidelines which require it to use the best available science when

disseminating “influential scientific information regarding human health, safety, or

environmental risk assessments.” UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, GUIDELINES FOR ENSURING AND MAXIMIZING THE QUALITY, OBJECTIVITY,

UTILITY, AND INTEGRITY OF INFORMATION DISSEMINATED BY EPA (2002). (hereinafter

called “EPA Guidelines”). Denka further asserts that this “best available science”

standard is “a familiar one in administrative law,” which courts frequently apply.

(Rec. Doc. 66, at 26). See Chlorine Chemistry Council v. EPA, 206 F.3d 1286 (D.C. Cir.

2000). Additionally, Denka argues that these guidelines provide a judicially

manageable standard for the EPA’s Denials. Denka points to Section 8.1 of the EPA

Guidelines which provides, in part, “EPA’s Office of Environmental Information

(OEI) manages the administrative mechanisms that enable affected persons to seek

and obtain, where appropriate, correction of information disseminated by the Agency

that does not comply with EPA or OMB Information Quality Guidelines.” EPA

Guidelines, § 8.1. Denka’s argument on this subject is brief and amounts to little more

than a single sentence implying that Section 8.1 of the EPA Guidelines imports this

“best available science” standard to requests for corrections of information. (Rec. Doc.

66, at 27).

In reply, the United States argues that Denka’s arguments regarding Section

701 are misplaced. First, the United States asserts that “Denka appears to be

rebutting an argument that the United States did not make, i.e., that Section

701(a)(2) bars review of the 2010 Assessment.” (Rec. Doc. 80, at 6). The United States

does not contest that this standard would apply to documents which are final and

reviewable under the APA. Additionally, because any arguments directed solely at

the 2010 Review itself are time-barred, Denka is prevented from arguing that the

EPA did not utilize the best available science in creating the 2010 Review. Second,

the United States argues that the best available science argument is not relevant in

this case because “it is based on the IQA’s requirements for documents in which an

agency in fact disseminates scientific information. The three Denials are not such

documents, however. They instead deny two administrative petitions seeking

correction of the 2010 Assessment and an administrative petition seeking

reconsideration of the second Denial.” Id. In short, the United States argues that the

best available science standard could arguably apply only to the 2010 Review and not

to the Denials because they are not scientific documents.

Denka does not attempt to explain how Section 8.1 of the EPA Guidelines

provides a judicially manageable standard for review, and instead merely asserts that

“EPA’s commitment to correct information that does not reflect the best available

science (id. § 8.1) is equally manageable and enforceable.” (Rec. Doc. 66, at 27).

Further, it is important to note that the “best available science” language does not

appear anywhere in Section 8 of the EPA Guidelines which outlines the

administrative mechanisms for correction of information. Although these guidelines

provide a procedure for such requests for correction, they do not provide a judicially

manageable standard to evaluate denials of such requests. The closest the EPA

Guidelines come to describing the standard of review is “considerations relevant to

the determination of appropriate corrective action include the nature and timeliness

of the information involved and such factors as the significance of the error on the

use of the information and the magnitude of the error.” EPA Guidelines, § 8.4. They

do not provide any information on how and whether the EPA determines if there is

an “error,” and they do not provide any standards the EPA must follow in coming to

this determination. Therefore, the Court must look back at the OMB Guidelines in

search of a judicially manageable standard.

Although the Fifth Circuit has not addressed whether judicial review is

permitted of these particular OMB guidelines under APA Section 701(a)(2), the

United States suggests that other courts have found that no such review is permitted.

For example, in Salt Institute v. Thompson, 345 F.Supp.2d 589, 602 (E.D. Va. 2004),

the court found that “neither the IQA nor the OMB Guidelines provide judicially

manageable standards that would allow meaningful judicial review to determine

whether an agency properly exercised its discretion in deciding a request to correct a

prior communication.” Referring to the same passage of the OMB Guidelines relevant

in this case, the court stated that these guidelines “insulate the agencies

determinations of when correction of information contained in informal agency

statements is warranted.” Id. at 603. Additionally, the United States points to

Muslim Advocates v. U.S. Justice Department, 2019 WL 3254230 (N.D. Ca. 2019). In

addition to finding that the IQA and OMB Guidelines do not provide standards for

judicial review, the court in Muslim Advocates evaluated whether DOJ and DHS

internal regulations provided judicially manageable standards. The DOJ standards

contain language very similar to those in the EPA Guidelines which Denka urges this

Court to use. The DOJ guidelines state “any corrective action will be determined by

the nature and timeliness of the information involved and such factors as the

significance of the error on the use of the information and the magnitude of the error.

DOJ is not required to change, or in any way alter, the content or status of

information simply based on the receipt of a request for correction.” Id. at *8. The

court found that this language as well as the language in the DHS Guidelines was

“near verbatim discretionary language regarding when correction is necessary.” Id.

Here, the EPA Guidelines similarly state “considerations relevant to the

determination of appropriate corrective action include the nature and timeliness of

the information involved and such factors as the significance of the error on the use

of the information and the magnitude of the error.” The Court cannot find that these

guidelines or the OMB Guidelines provide a judicially manageable standard.

Therefore, under APA Section 701(a)(2), Denka’s challenges to the Denials are barred

from review because they were committed to agency discretion and are therefore

protected by sovereign immunity. Denka’s second, third, fourth, and fifth affirmative

defenses and second and third counterclaims deal with the Denials and are therefore

dismissed for lack of subject matter jurisdiction.

III. Denka’s Remaining Affirmative Defenses and Counterclaims

Denka’s remaining affirmative defense and three remaining counterclaims are

related to but do not directly challenge the 2010 Review or the Denials. Therefore,

the Court will address them separately. Denka’s fourth counterclaim alleges that

“Counterclaim-Defendants’ actions to enforce the 0.2 μg/m3 IUR value for chloroprene

against the Facility, including in the pending ISE Action, is arbitrary, capricious, an

abuse of discretion, and not in accordance with law in violation of the APA, because

Counterclaim-Defendants have failed to consider the best scientific data available at

the time.” (Rec. Doc. 22, at 61). The “pending ISE Action” refers to the United States’

pending claim in this matter under Section 303 of the Clean Air Act. Id. at 23. It

appears then that Denka is challenging the very decision to bring this lawsuit under

the APA. Of course, Denka cannot challenge this lawsuit under the APA for multiple

reasons, not the least of which is that the Department of Justice chose to pursue this

lawsuit, not the EPA itself. Therefore, this claim is dismissed.

Denka’s fifth counterclaim alleges that “Counterclaim-Defendants have

arbitrarily and capriciously reversed 30 years of EPA risk assessment policy without

reasoned explanation by treating an estimated 1-in-10,000 risk based on the 2010

IUR in a strict, ‘bright line’ fashion.” Id. at 63. Denka’s sixth affirmative defense is

nearly identical to this claim. Id. at 20. This claim has several issues. First, Denka

does not identify how this standard has been applied in a bright-line fashion.4 Second,

Denka does not state why or what law supports a claim that applying this standard

in a bright-line fashion would be problematic. Denka merely states that the EPA’s

use of this standard “without reasoned explanation was arbitrary, capricious, an

abuse of discretion, and not in accordance with law, in violation of the APA.” Id. at

63. This claim is vague and unspecific and does not describe circumstances upon

which relief can be granted. Therefore, Denka’s fifth counterclaim is dismissed, and

Denka’s sixth affirmative defense is stricken. However, Denka is granted leave to

amend these claims assuming that Denka can provide a basis which does not rest

solely on the issuance of the 2010 Review, the Denials, or the institution of the United

States’ Section 303 action.

Denka’s sixth and final counterclaim is also very similar, alleging that

113. In numerous regulatory actions relating to the Facility, including but

not limited to the ISE Action, the NEIC inspections, the Title VI Letter of

Concern, and in numerous communications with LDEQ and others, EPA

has relied on the 2010 IUR as the sole basis for action and has ignored all

other available scientific information, including the Ramboll PBPK Model,

the Marsh epidemiology studies, and the Louisiana Tumor Registry data.

114. Under the Clean Air Act, the Information Quality Act, and the APA,

EPA has an affirmative duty to evaluate available scientific evidence in

making risk determinations affecting DPE.

4 In fact, in another section of its answer, Denka directly quotes an EPA letter to the Louisiana

Department of Environmental Quality stating that the standard is “not a ‘bright line’ for

determining whether a risk level is considered safe or acceptable.” (Rec. Doc. 22, at 49).

Id. at 64. As to the “ISE action” which is the Section 303 claim in this case, this Court

has already stated that Denka cannot challenge the instant lawsuit under the APA.

The NEIC inspection refers to a compliance investigation performed by the EPA’s

National Environmental Investigations Center in June 2016. Denka’s answer

contains scanty references to this inspection and does not explicitly state that this

inspection utilized the 0.2 μg/m3 standard in any way, nor does it explain why doing

so would be a violation of the APA. Id. at 48, 49. As to the Title VI Letter of Concern,

Denka alleges that this letter recommended that the Louisiana Department of

Environmental Quality “(i) conduct a cumulative impact analysis of the neighboring

community; (ii) monitor area chloroprene concentrations based on the 0.2 μg/m3

value; (iii) issue renewed air permits to the Facility only “after completion of the

cumulative impact analysis”; and (iv) “work to establish limits in Industrial Corridor

air permits [including the Facility’s air permits] that, in the aggregate, limit air

emissions of carcinogens that have a mutagenic mode of action, including

chloroprene.” Id. at 54. Merely recommending an action to a third party does not

constitute a reviewable agency action for purposes of the APA as no legal

consequences flow directly from it. See Bennett 520 U.S. 177-78. See also Air

California v. U.S. Dept. of Transp., 654 F.2d 616, 621 (9th Cir. 1981) (FAA warning

that it would pursue legal action without compliance with federal regulations was not

a final agency action). Denka’s vague statement regarding “numerous

communications with LDEQ and others” also cannot constitute an agency action.

None of the “regulatory actions” Denka lists in its sixth counterclaim are actually

agency actions reviewable under the APA.

Denka’s final assertion that the EPA has an “affirmative duty to evaluate

available scientific evidence in making risk determinations affecting DPE” is also not

persuasive. Denka does not allege any facts suggesting that the EPA did not consider

the alternative evidence cited by Denka as superior to the 2010 Review. Denka merely

alleges that the EPA chose not to update the 2010 Review when presented with

Denka’s new evidence in issuing the Denials. The Court has already explained why

it does not have subject matter jurisdiction over the Denials. Therefore, the sixth

counterclaim is also dismissed.

Although the Court has dismissed Denka’s claims under the APA, Denka may

still challenge the science behind the United States’ Section 303 action. The United

States openly admits that “Denka is free to assert that EPA based this CAA imminent

and substantial endangerment case on inaccurate scientific information and explain

why it considers that information to be inaccurate.” (Rec. Doc. 57, at 12). Dismissing

Denka’s APA claims in no way hinders its ability to defend itself or to argue that the

0.2 μg/m3 level is inaccurate or flawed. In fact, such a scientific inquiry is the central

issue of the United States’ pending Motion for Preliminary Injunction. (Rec. Doc. 9).

In dismissing these claims for lack of subject matter jurisdiction, the Court is not

issuing a judgment on the merits.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that the United States’ Motion to

Dismiss Denka Performance Elastomer, LLC’s Counterclaims and First Six

Affirmative Defenses for Lack of Subject Matter Jurisdiction (Rec. Doc. 57) is

GRANTED. Denka’s first five affirmative defenses are STRICKEN without leave

to amend, and the sixth affirmative defense is STRICKEN with leave to amend.

Denka’s counterclaims are DISMISSED with prejudice with the exception of the

fifth counterclaim which is DISMISSED without prejudice.

New Orleans, Louisiana, this 30th day of August, 2023.

UK Bake

AK

CARL J. BA iy RY

UNITED STATES DISTRICT JUDGE

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