Kanawha Valley group among those suing EPA to force review of air emission standards

Having faced elevated cancer risk from carcinogenic chemical emissions for years, Kanawha Valley chemical safety advocates say that greater environmental protection is overdue.

In a new federal lawsuit, they’re making that case literally.

People Concerned About Chemical Safety, a Kanawha Valley-based grassroots group, is one of three plaintiffs in the suit that says the Environmental Protection Agency has failed to safeguard public health by not timely reviewing air emission standards that apply to a comparatively high concentration of Kanawha County chemical facilities.

“No one is above the law,” People Concerned About Chemical Safety member Maya Nye said.

Over a sixth of the more than two-dozen chemical facilities that EPA data show fall in the category of emission sources the groups have targeted are in West Virginia.

Included in the category are facilities like those in Institute and South Charleston that emit ethylene oxide, a flammable, colorless gas that sent Kanawha County’s cancer risk soaring after the EPA concluded in 2016 that the chemical was 30 times more carcinogenic for adults than previously thought.

“By having these very sort of potent ethylene oxide emitters, that is a great risk for folks living near these facilities,” said Adam Kron, an attorney for national nonprofit environmental law firm Earthjustice who helped file the lawsuit. “That’s what we’re hoping to do with this lawsuit is to get [the] EPA on track and on an enforceable schedule to make these revisions that we know need to get done.”

The EPA last updated hazardous air pollutant emission standards for its Polyether Polyols Production category of sources in 2014. Polyether polyols are compounds used to make cosmetics, lubricants, soaps and feedstock for substances that produce adhesives and sealants.

The Clean Air Act requires the EPA to review and, if needed, revise emission standards for hazardous air pollutants in listed categories at least every eight years.

Nye grew up near the Institute chemical plant site where two explosions in 1993 and 2008 killed three workers combined. The site was owned by former French chemical company Rhône-Poulenc and Bayer CropScience during the incidents, respectively.

Nye says her life was forever changed by the first fatal accident, which required her and others to shelter in place.

Institute is an unincorporated, historically Black community that has dealt with the cumulative effects of generations of pollution.

“Protections from cancer-causing chemicals are long overdue for the people who live, work, play, pray and go to school in [the] Kanawha Valley, especially for people in Institute, North and South Charleston, and surrounding communities,” Nye said. “Those protections are already too late for many people.”

EPA spokeswoman Shayla Powell declined to comment on the lawsuit, saying the agency had no information to add because of the pending litigation filed in the U.S. District Court for the District of Columbia. People Concerned About Chemical Safety is joined by two other plaintiffs: the Louisiana Environmental Action Network and the Sierra Club.

The Polyether Polyols Production category includes ethylene oxide-emitting Union Carbide facilities on Route 25 in Institute, just west of West Virginia State University, and MacCorkle Avenue in South Charleston, according to EPA data. The two facilities combined to emit nearly 23,000 pounds of ethylene oxide from 2014, the year the EPA last formally finalized a risk and technology review for the Polyether Polyols Production category, through 2022, according to EPA data.

The category also includes a Covestro facility in South Charleston.

Local health concerns about ethylene oxide escalated after the EPA’s 2018 National Air Toxics Assessment. The assessment found that six of the 90 census tracts with the highest cancer risk from ethylene oxide were in Kanawha County.

The total cancer risk in Kanawha was 366 in 1 million, 10th-highest in the country.

It was the first such assessment since the EPA classified ethylene oxide as a carcinogen in 2016, causing risk estimates to go up — after the EPA’s 2014 review of the Polyether Polyols Production category.

Ethylene oxide is a flammable, colorless gas used to make antifreeze, detergents and plastics, and to sterilize medical and dental equipment. Long-term exposure has been associated with reproductive problems and increases in female breast and white blood cell cancers, including leukemia and Hodgkin and non-Hodgkin lymphoma.

EPA data show that sites in Institute and South Charleston currently operated by Union Carbide emitted over 434 tons of ethylene oxide into the air from 1987 through 2021. EPA-approved air quality modeling has indicated a 600-in-1 million cancer risk around the Institute plant site, where Union Carbide and Specialty Products emit ethylene oxide.

That’s six times the 100-in-1 million risk level the EPA has used to help determine whether facilities need to reduce emissions in developing air toxics regulations.

The EPA Office of Inspector General, an independent office within the EPA that conducts audits and investigations aimed at improving the agency, issued a report in May 2021 recommending the agency conduct a new risk review for polyether polyols.

While a review wasn’t due for another 10 months at the time of the report’s release, the OIG said a review should be conducted “as soon as practicable” given the “potent carcinogenicity of ethylene oxide, demonstrated by the EPA’s 2016 revised ethylene oxide cancer risk estimate.

In a response to the OIG’s report, the EPA estimated a draft review for the Polyether Polyols Production category would be complete in the fourth quarter of fiscal year 2024.

The OIG noted the Clean Air Act “does not provide any exceptions” for the requirement that technology reviews be conducted for source categories every eight years.

The plaintiffs in Monday’s lawsuit cited the OIG report.

Kron said he hopes an EPA polyether polyols review results in provisions for more enhanced leak detection technology and more frequent detections.

The plaintiffs contend a new review must consider fenceline monitoring as a way to comply with emission standards, noting the EPA proposed a rule in April applying to another category of emission sources that would require plants to conduct fenceline monitoring if they use, produce, store, or emit any of six key air toxics, including ethylene oxide.

Fenceline monitoring is monitoring around a facility’s perimeter. If annual average air concentrations of the chemicals exceed an “action level” at the fenceline, owners and operators would have to find the source and make repairs.

The lawsuit asserts that as part of its next polyether polyol production review, the EPA would have to eliminate a loophole through the agency’s 2014 review designed to grant industry relief in cases of emission standard violations caused by malfunctions.

The 2014 review yielded provisions to provide an affirmative defense to civil penalties for violations of emission standards caused by malfunctions. An affirmative defense is a defense that allows a defendant to introduce evidence that, if deemed credible, erase liability even if the defendant is found to have committed the alleged act.

The lawsuit cites a 2014 D.C. Circuit Court of Appeals decision that found the EPA didn’t have the authority to create an affirmative defense for private civil suits.

“So that’s something we really want to see removed,” Kron said.

“[The] EPA is past due to update the rule,” Nye said, “and now they have to answer to a judge.”