A citizens group in West Virginia is suing federal regulators after their Black community and others in Louisiana and Texas were left out of an effort to tighten rules to control cancer-causing air pollution.
The lawsuit filed Monday alleges that the Environmental Protection Agency has failed to protect vulnerable communities from cancer-causing chemicals by missing a key deadline.
Pam Nixon, a long-time environmental advocate and member of the Charleston-based People Concerned About Chemical Safety, said she felt like her community was often neglected by the EPA.
“There is no justice yet until all communities are treated the same and until people everywhere are breathing clean air and it doesn’t impact the health of their families,” said Nixon, who got sick after being exposed to a leak from the Institute plant in 1985.
The lawsuit seeks to pressure regulators to update federal emissions standards for facilities that produce polyether polyols — a chemical production category which emits carcinogens such as ethylene oxide.
These facilities are major sources of pollution that disproportionately affect communities of color and lower-income areas, which are often already overburdened by industrial development.
Institute, one of West Virginia’s only two majority-Black communities, faces an increased cancer risk from industrial air pollution at 36 times the level the EPA considers acceptable from the nearby Union Carbide plant — a facility that has helped define West Virginia’s “Chemical Valley.”
How Black communities become ‘sacrifice zones’ for industrial air pollution
The Union Carbide facility, now owned by Dow Chemical, makes ethylene oxide, a cancer-causing chemical that helps produce a wide variety of products, including antifreeze, pesticides and sterilizing agents for medical tools.
A 2021 ProPublica analysis of over 7,600 facilities across the country that increase the estimated cancer risk in nearby communities ranked the Institute plant 17th. On average, the level of cancer risk from industrial air pollution in majority-Black communities across the country is more than double that for majority-white communities, according to ProPublica’s analysis.
Institute was highlighted in a 2021 Mountain State Spotlight and ProPublica story, detailing how Black communities across the country were saddled with a disproportionate health burden from industrial pollution.
Elevated cancer risks also affect the overburdened “Cancer Alley” along the Mississippi River between Baton Rouge, Louisiana, and New Orleans as well as around Houston, Texas, where there are also clusters of polyether polyols production facilities, according to the lawsuit.
The Louisiana Environmental Action Network and the Sierra Club joined the Charleston-based organization in the lawsuit against the EPA.
Federal lawsuit filed after missed deadline
On Monday morning, the environmental groups filed a lawsuit against the EPA for failing to perform its required duties by missing a 2022 deadline to update the polyether polyols production source category.
The EPA did not comment and Dow Chemical did not respond to an emailed request for comment.
The EPA is required by the Clean Air Act to review and update emission standards for hazardous air pollutants every eight years. However, the agency hasn’t updated its standards for the polyether polyol production source category since March 2014.
Because regulators missed the original deadline and still have not updated the source category, the lawsuit is asking the court to find the EPA in violation of the Clean Air Act and to compel the agency to update the emissions standards by a swift deadline set by the court itself.
The lawsuit comes after the EPA proposed a string of new requirements in April to reduce the risks to communities by ethylene oxide, including a significant reduction of air pollution from chemical plants. However, these proposed rules don’t address the outdated emission standards for polyether polyol production facilities – like the one in Institute.
Cancer risks from ethylene oxide are worse than previously known
While the EPA reviewed the polyether polyol pollutants in 2014, the agency hasn’t made any substantive revisions to the standards for this source category since 1999, according to Adam Kron, an attorney for Earthjustice representing the environmental groups.
The EPA made minor changes to the monitoring standards of polyether polyols based on the technology review in 2014, but the agency decided not to make any revisions based on its risks review — which looks at whether the current standards adequately protect communities against health risks.
In 2016 — two years after the EPA reviewed the standards — the agency determined that ethylene oxide’s cancer risk was nearly 60 times greater than previously thought.
And in 2021, the EPA’s Office of the Inspector General urged the agency to review polyether polyol production before its March 2022 deadline after a report on ethylene oxide-emitting source categories found that the EPA was failing to meet required deadlines for conducting reviews.
The inspector general’s report also noted that the EPA couldn’t guarantee that the current emissions standards were adequately protecting public health because it had fallen behind on reviewing them, according to the lawsuit.
In response to the report, EPA regulators said they planned to complete a review of emissions standards for facilities like the one in Institute by late 2024 – more than two years after the deadline.
Correction: An earlier version of this story misidentified polyether polyols. It is a chemical production category which emits carcinogens. This has been corrected.