CENTER FOR EVIRONMENTAL
`HEALTH
`201 Broadway, Suite 508
`Oakland, CA 94612
`
`
`
`
`3N INTERNATIONAL, INC.
`310 North Cleveland Massillon Road
`Akron, OH 44333
`
`
`
`
`
`
`
`Plaintiff,
`
`
`v.
`
`
`
`Defendant.
`
`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 1 of 13
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`Case No. 21-1720
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF
`
`Introductory Statement
`
`This is a citizen enforcement suit brought by the Center for Environment Health
`
`1.
`
`(“CEH”) to redress and prevent ongoing violations of reporting requirements for chemical
`
`substances under the federal Toxic Substances Control Act (“TSCA”).
`
`2.
`
`Plaintiff CEH is a non-profit organization working to protect children and
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`families from harmful chemicals in air, food, water and in everyday products. Its vision and
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`mission are a world where everyone lives, works, learns and plays in a healthy environment; we
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`protect people from toxic chemicals by working with communities, businesses, and the
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`
`
`1
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 2 of 13
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`government to demand and support business practices that are safe for human health and
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`the environment. CEH is headquartered in Oakland, California.
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`3.
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`Defendant 3N International, Inc. (“3N International”), is a manufacturer and
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`importer of chemicals subject to reporting obligations under TSCA. 3N International is headquartered
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`in Akron, Ohio.
`
`4.
`
`Plaintiff files this Complaint pursuant to TSCA’s citizen suit provision, section
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`20(a) 15 U.S.C. §2619(a), seeking declaratory and injunctive relief to remedy defendant’s
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`violations of TSCA and recovery of plaintiff’s reasonable fees and costs.
`
`5.
`
`3N International has violated, and continues to violate, the Chemical Data
`
`Reporting (“CDR”) rule promulgated by the Environmental Protection Agency (“EPA”) under
`
`section 8(a) of TSCA by failing to report 843,047 pounds of tetrabromobisphenol A bis(2,3-
`
`dibromopropyl ether) that it imported during 2013-2015 for the 2016 CDR Update.
`
`6.
`
`3N International’s failure to report these large volume imports is undermining
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`EPA’s efforts under TSCA to evaluate and address chemical risks and preventing the public
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`from tracking the movement of unsafe chemicals in commerce and monitoring their presence in
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`communities.
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`7.
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`3N International has also filed to report five other substances imported in
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`reportable quantities during the 2013-2015 reporting period for the 2016 CDR Update.
`
`8.
`
`3N International has failed to respond to a notice of violation from CEH under
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`section 20(b)(1)(A) of TSCA. Accordingly, absent an order from this Court requiring reporting
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`under the CDR rule, defendant will continue to be in non-compliance with TSCA.
`
`
`
`TSCA Citizens’ Suit Provisions
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`
`
`
`2
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 3 of 13
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`6.
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` Under section 20(a)(1)(B) of TSCA, “any person may commence a civil action
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`. . . against any person . . . who is alleged to be in violation of this Act . . . to restrain such
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`violation.”
`
`7.
`
` Section 20(b)(1)(A) provides that no action to restrain a violation of TSCA may
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`be commenced “before the expiration of 60 days after the plaintiff has given notice of such
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`violation (i) to the Administrator and (ii) to the person who is alleged to have committed such
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`violation.”
`
`8.
`
` Civil actions under section 20(a)(1)(B) of TSCA “shall be brought in the United
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`States District Court for the district in which the alleged violation occurred or in which the
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`defendant resides or in which the defendant’s principal place of business is located . . .without
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`regard to the amount in controversy or the citizenship of the parties.”
`
`9.
`
`Under section 20(c)(2), the court in an action to restrain a violation under
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`section 20(a)(1) “may award costs of suit and reasonable fees for attorneys and expert witnesses
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`if the court determines that such an award is appropriate.”
`
`TSCA Provisions
`
`10.
`
`TSCA was enacted in 1976 to create a national program for assessing and
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`managing the risks of chemicals to human health and the environment. Among the goals stated in
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`TSCA section 2(b), 15 U.S.C. §2601(b), are that: (1) “adequate information should be developed
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`with respect to the effect of chemical substances and mixtures on health and the environment”
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`and (2) “adequate authority should exist to regulate chemical substances and mixtures which
`
`present an unreasonable risk of injury to health or the environment.”
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`11.
`
`The need for this comprehensive framework for managing chemical risks was
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`described as follows in the Senate Report on the original law:
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`
`
`3
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 4 of 13
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`As the industry has grown, we have become literally surrounded by a man-made
`chemical environment. We utilize chemicals in a majority of our daily activities. We
`continually wear, wash with, inhale, and ingest a multitude of chemical substances. Many
`of these chemicals are essential to protect, prolong, and enhance our lives. Yet, too
`frequently, we have discovered that certain of these chemicals present lethal health and
`environmental dangers.
`
`Senate Rept. No. 94-698, 94th Cong. 2d Sess. (1976) at 3.
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`12.
`
`After a multi-year effort to overhaul and strengthen its key provisions, TSCA was
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`amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“LCSA”),
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`which took effect on June 11, 2016. These TSCA amendments enhance the chemical regulatory
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`authorities in section 6 by establishing a new integrated process for (1) prioritizing chemicals, (2)
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`conducting risk evaluations on high- priority chemicals and (3) promulgating rules under section
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`6(a) to eliminate unreasonable risks identified in risk evaluations. Congress set strict deadlines
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`for each of these steps and directed EPA to address a minimum number of chemicals by these
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`deadlines. It also removed the impediments to effective regulation created by eliminating any
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`consideration of costs and other non-risk factors in determining whether chemicals present an
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`unreasonable risk of injury and directing EPA to impose requirements “necessary so that the
`
`chemical no longer presents such [unreasonable] risk.”
`
`Chemical Data Reporting Requirements under TSCA
`
`13.
`
`TSCA section 8(a)(1) provides that EPA “shall promulgate rules” that require
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`each person who manufactures or processes a chemical substance to submit such reports as the
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`“Administrator may reasonably require.” 15 U.S. C. § 2607(a). Because section 3(9) defines
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`“manufacture” to include “importation,” reports must be submitted by importers of chemical
`
`substances subject to these rules. The rulemaking authority under section 8 is a critical tool to
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`collect the information on chemical use and exposure necessary for informed and effective risk
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`evaluation and risk management.
`
`
`
`4
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 5 of 13
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`14.
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`In 2011, EPA promulgated the Chemical Data Reporting (“CDR”) rule using its
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`authority under TSCA section 8(a)(1). 40 C.F.R. Part 711. The rule is intended to support EPA’s
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`risk assessment and reduction efforts by providing basic information about the manufacturing,
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`use and exposure profiles of chemicals in commerce. As the Agency explained in 2011, the new
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`reporting requirements --
`
`will enhance the capabilities of the Agency to ensure risk management actions are taken
`on chemical substances which may pose the greatest concern. More in-depth reporting of
`the processing and use data, more careful consideration of the need for confidentiality
`claims, and adjustments to the specific data elements are important aspects of this action.
`By enhancing the data supplied to the Agency, EPA expects to more effectively and
`expeditiously identify and address potential risks posed by chemical substances and
`provide improved access and information to the public.
`
`76 Federal Register 50818, 30819 (Aug. 16, 2011).
`
`15.
`
`Under the rule, reporting is required for all chemicals manufactured or imported
`
`at a site in volumes of 25,000 pounds or more per facility in a given reporting year. For
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`chemicals already regulated under certain TSCA provisions, the reporting threshold is set at
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`2,500 pounds per reporting year. Manufacturers and importers subject to the CDR requirements
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`must report every four years. A reporting cycle was completed in the fall of 2016, with reports
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`due on October 31, 2016. For this CDR update, activities conducted in calendar years 2012-2015
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`determined the application of reporting requirements and the information to be reported.
`
`16.
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`Under the CDR rule, reports must be submitted using a “Form U.” Separate forms
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`must be filed for each manufacture or import site. The Form U must include import/manufacture
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`volume for each of the last four years, the number of workers exposed and basic information
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`about site operations. It must also include information about industrial, commercial and
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`consumer uses of the substance at other sites and the potential for exposure associated with these
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`downstream activities.
`
`
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`5
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 6 of 13
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`17.
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`In expanding the scope of reporting to capture these data elements, EPA
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`emphasized that this “exposure information is an essential part of developing risk evaluations
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`and, based on its experience in using this information, the Agency believes that collecting this
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`exposure information is critical to its mission of characterizing exposure, identifying potential
`
`risks, and noting uncertainties for [reportable] chemical substances.” 76 Federal Register 50823.
`
`18.
`
`Section 15 of TSCA provides that it is unlawful for any person to
`
`"(1) fail or refuse to comply with any requirement of this title or any rule promulgated ...
`under this title; or ..... "(3) fail or refuse to ... submit reports, notices, or other
`information; ... as required by this Act or a rule thereunder;"
`
`19.
`
`Persons who do not comply with the CDR rule “fail or refuse to . . . submit
`
`reports . . .as required by this Act or a rule thereunder” and thus act unlawfully under section 15.
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`Non-compliance with the CDR rule therefore constitutes a “violation of this Act" subject to a
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`citizens' suit under section 20(a)(1) of TSCA.
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`Jurisdiction and Venue
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`20. CDR reports must be reported through EPA’s Central Data Exchange (CDX), an
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`electronic site used for submission of reports to the Agency which is maintained at EPA
`
`headquarters at 1200 Pennsylvania Avenue NW in Washington DC.
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`21. CDR reports are reviewed and analyzed by EPA’s Office of Chemical Safety and
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`Pollution Prevention (“OCSPP”), which is located at EPA headquarters.
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`22. Defendant’s violations of the CDR rule accordingly occurred in the District of
`
`Columbia.
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`23. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C. §2619(a),
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`under which citizens’ suits to restrain violations of TSCA “shall be brought in the United States
`
`District Court for the district in which the alleged violation occurred.”
`
`
`
`6
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 7 of 13
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`24. Venue is proper in the District of Columbia under 28 U.S.C. §1391(b)(2) and 15
`
`U.S.C. §2619(a), which provides that the district courts “shall have jurisdiction over suits
`
`brought under this section, without regard . . . to the citizenship of the parties” and “process may
`
`be served on the defendant in any judicial district in which the defendant resides or may be
`
`found.”
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`Plaintiff’s Notices of Intent to Sue
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`25. On February 17, 2021, plaintiff CEH sent by registered mail a notice of intent to
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`sue under TSCA section 20(b)(1) to defendant 3N International and a similar notice to EPA
`
`Acting Administrator Jane Nishida.
`
`26. These notices described with particularity defendant’s violations of CDR
`
`requirements and provided the information called for in 40 CFR §702.62(b).
`
`27. According to the signed receipts returned to plaintiff CEH, defendant 3N
`
`International received its notice on February 26, 2021 and EPA received its notice on March 1,
`
`2021.
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`28. Defendant did not take action to comply with the CDR rule in response to
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`plaintiff’s notice of intent to sue.
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`29. EPA has not commenced an action under TSCA to require defendant to comply
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`with CDR requirements under TSCA section 20(b)(1)(B).
`
`Defendant’s Imports of Tetrabromobisphenol A bis(2,3-dibromopropyl ether) during the
`2011-2015 CDR Reporting Period
`
`30. From July 2014 to July 2015 3N International received at least 9 shipments of
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`tetrabromobisphenol A bis(2,3-dibromopropyl ether) from China. Nine of the shipments were
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`unloaded in Baltimore, Maryland. These shipments totaled 843,047 pounds.
`
`
`
`7
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 8 of 13
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`31. Broken down by year, the tetrabromobisphenol A bis(2,3-dibromopropyl ether)
`
`shipments were as follows:
`
`
`
`
`
`Year Exporter
`
`Country Importer Pounds Ports
`
`2014 Wuhan Golden Resources Co. China
`
`3N Intl
`
`266,230 Baltimore, Maryland
`
`2015 Wuhan Golden Resources Co. China
`
`3N Intl
`
`576,817 Baltimore, Maryland
`
`32. No Form Us for these shipments were identified in EPA’s CDR database for the
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`2016 reporting cycle.
`
`33. Tetrabromobisphenol A bis(2,3-dibromopropyl ether) is widely used as a flame
`
`retardant in a variety of commercial and consumer products with the significant potential for
`
`human exposure.
`
`34. State and federal agencies charged with protecting public health need complete
`
`and accurate information about the total amount of tetrabromobisphenol A bis(2,3-
`
`dibromopropyl ether) produced and imported in the United States and how and where the
`
`substance is distributed and used. This information is also critical for communities exposed to
`
`tetrabromobisphenol A bis(2,3-dibromopropyl ether) emissions and releases from industrial
`
`facilities as well as from consumer products.
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`35. CDR reporting is an essential tool for tracking the production and use of
`
`tetrabromobisphenol A bis(2,3-dibromopropyl ether) and 3N International’s failure to report
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`large import shipments under the CDR rule weakens the ability of EPA and local communities to
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`evaluate and protect against serious threats to health.
`
`Other Imported Chemicals Not Reported by Defendant 3N under the CDR Rule
`during the 2011-2015 CDR Reporting Period
`
`
`
`
`
`8
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 9 of 13
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`36. CEH and its consultants also reviewed publicly available data on 3N’s imports of
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`other chemicals from China during 2013-2015 and identified five substances that were not
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`reported for the 2016 CDR Update: antimony sulfide, antimony trioxide, arsenic, ethylene bis-
`
`(tetrabromophthalimide), and zinc stannate.
`
`37.
`
`Import shipments and volumes for the five substances were as follows:
`
`
`
`Antimony Sulfide Imports: 3 shipments, 686, 000 pounds
`
`Year Exporter
`
`Country Importer Pounds Ports
`
`2013 Wuhan Golden Resources Co. China
`
`3N Intl
`
`2014 Wuhan Golden Resources Co. China
`
`3N Intl
`
`250,665 Baltimore,
`Maryland; Newark,
`New Jersey; New
`York, New York
`
`302,606 Baltimore,
`Maryland; Newark,
`New Jersey; New
`York, New York
`
`2015 Wuhan Golden Resources Co. China
`
`3N Intl
`
`132,850 Baltimore, Maryland
`
`
`
`Antimony Trioxide Imports: 3 shipments, 971,000 pounds
`
`Year Exporter
`
`Country
`
`Importer Pounds Ports
`
`432,767 Baltimore,
`Maryland; Long
`Beach, California;
`Norfolk, Virginia;
`Seattle, Washington
`
`383,273 Baltimore,
`Maryland; Long
`Beach, California
`
`155,205 Baltimore,
`Maryland; Los
`Angeles, California
`
`2013 Hunan Zhongnan Antimony
`& Tungsten
`
`China
`
`3N Intl
`
`2014 Hunan Zhongnan Antimony
`& Tungsten
`
`China
`
`3N Intl
`
`2015 Hunan Zhongnan Antimony
`& Tungsten
`
`China
`
`3N Intl
`
`
`
`Arsenic Imports: 3 shipments, 358,000 pounds
`
`
`
`9
`
`

`

`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 10 of 13
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`Year Exporter
`
`Country
`
`Importer Pounds Ports
`
`2013 Chenzhou Kuanhe Metal Co./
`Wuhan Golden Resources
`
`China
`
`3N Intl
`
`2014 Wuhan Golden Resources
`
`China
`
`3N Intl
`
`142,087 Baltimore,
`Maryland; Newark,
`Virginia; New
`York, New York
`
`88,691* Newark, Virginia;
`New York, New
`York
`
`2015 Wuhan Golden Resources
`
`127,581 Newark, Virginia;
`New York, New
`York
`*Below reporting threshold for businesses with under $40 million global sales volume.
`
`China
`
`3N Intl
`
`Ethylene bis-(tetrabromopthalimide) Imports: 3 shipments, 971,000 pounds
`
`Year Exporter
`
`Country
`
`Importer Pounds Ports
`
`2013 Wuhan Golden Resources
`
`China
`
`3N Intl
`
`2014 Wuhan Golden Resources
`
`China
`
`3N Intl
`
`2015 Wuhan Golden Resources/
`Unibrom
`
`China
`
`3N Intl
`
`358,912 Baltimore,
`Maryland
`
`358,978 Baltimore,
`Maryland
`
`312,527 Baltimore,
`Maryland
`
`
`
`Zinc Stannate Imports: 1 shipment, 146,000 pounds
`
`Year Exporter
`
`Country
`
`Importer Pounds Ports
`
`2014 Wuhan Golden Resources
`
`China
`
`3N Intl
`
`146,386 Baltimore,
`Maryland
`
`
`
`These substances are used widely as flame retardants and in other applications and have the
`
`potential for significant human exposure and environmental release. Arsenic is considered a
`
`highly toxic substances and is linked to cancer and other serious health effects.
`
`Claim for Relief
`
`10
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 11 of 13
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`38. Plaintiff hereby incorporates by reference the allegations contained in paragraphs
`
`1 through 37 as if fully set forth herein.
`
`39. Section 20(a)(1)(B) of TSCA authorizes any person to file suit in a United States
`
`district court against any person alleged be in violation of the Act to restrain such violation.
`
`40. Plaintiff CEH provided notice to defendant 3N International and the EPA
`
`Administrator more than 60 days before filing this action, as required by TSCA section 20(b)(1).
`
`41. As described in this notice, defendant 3N International imported 843,047 pounds
`
`of tetrabromobisphenol A bis(2,3-dibromopropyl ether) during 2013-2016 but failed to report
`
`these imports to EPA for the 2016 CDR Update in accordance with 40 CFR Part 720.
`
`42. Defendant also imported antimony sulfide, antimony trioxide, arsenic, ethylene
`
`bis-(tetrabromophthalimide), and zinc stannate in reportable quantities during 2013-2016 but
`
`failed to report these imports to EPA for the 2016 CDR Update in accordance with 40 CFR Part
`
`720.
`
`43. Defendant’s imports of these six chemicals exceeded the 25,000-pound threshold
`
`for CDR report and were therefore reportable under the CDR rule.
`
`44. As the importer of these chemicals , defendant was and remains in violation of the
`
`CDR reporting requirements under 40 CFR §711.8.
`
`45. These violations comprise “prohibited acts” under TSCA section 15 and represent
`
`“violations of this Act” for purposes of citizens’ suits section 20(a)(1)(B).
`
`46. The Court should order defendant to report its imports of the six chemicals to
`
`EPA in compliance with the CDR rule and restrain defendant from any other ongoing violations
`
`of CDR reporting requirements.
`
`Request for Relief
`
`11
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`

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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 12 of 13
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`WHEREFORE, Plaintiff respectfully requests judgment in its favor and against defendant upon
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`its claims and, further, requests that this Honorable Court enter judgment against defendant:
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`(1) Declaring that defendant’s failure to report its imports of tetrabromobisphenol
`
`A bis(2,3-dibromopropyl ether), antimony sulfide, antimony trioxide, arsenic,
`
`ethylene bis-(tetrabromophthalimide), and zinc stannate during 2013-2015 to
`
`EPA in 2016 was a violation of the CDR reporting requirements at 40 CFR
`
`Part 711, a “prohibited act” under section 15 of TSCA and a “violation of this
`
`Act” actionable in a citizen’s suit under section 20(a)(1)(B) of TSCA;
`
`(2) Declaring that plaintiff has met the notice requirements and other prerequisites
`
`for relief under TSCA section 20;
`
`(3) Ordering defendant to file Form Us with EPA for its imports of the six
`
`substances in compliance with CDR reporting requirements at 40 CFR Part
`
`711;
`
`(4) Ordering defendant to audit its imports to identify any other ongoing
`
`violations of CDR reporting requirements and remedy these violations
`
`pursuant to TSCA section 20;
`
`(5) Awarding plaintiff its costs of suit and reasonable fees for attorneys and
`
`expert witnesses in this action pursuant to 15 U.S.C. § 2619(c)(2); and
`
`(6) Grant plaintiff such further and additional relief as the Court may deem just
`
`and proper.
`
`
`
`Respectfully submitted this 28th day of June, 2021.
`
`
`
`12
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`Case 1:21-cv-01720 Document 1 Filed 06/28/21 Page 13 of 13
`
`/s/ Robert M. Sussman
`Robert M. Sussman
`SUSSMAN & ASSOCIATES
`DC BAR NO. 226746
`3101 Garfield Street, NW
`Washington, DC 20008
`(202) 716-0118
`Bobsussman1@comcast.net
`
`Attorneys for Plaintiff
`
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`13
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