CENTER FOR EVIRONMENTAL
`HEALTH
`2201 Broadway, Suite 508
`Oakland, CA 94612
`
`
`
`
`BRASKEM AMERICA, INC.
`1735 Market Street, 28th Floor
`Philadelphia, PA 19103
`
`
`
`
`
`
`Plaintiff,
`
`
`v.
`
`
`
`Defendant.
`
`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 1 of 12
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`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`Case No. 21-1724
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF
`
`Introductory Statement
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`This is a citizen enforcement suit brought by the Center for Environment Health
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`1.
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`(“CEH”) to redress and prevent ongoing violations of reporting requirements for chemical
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`substances under the federal Toxic Substances Control Act (“TSCA”).
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`2.
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`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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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 2 of 12
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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 Braskem America, Inc. (“Braskem”), is a manufacturer and importer of
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`chemicals subject to reporting obligations under TSCA. Braskem is headquartered in Philadelphia,
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`Pennsylvania.
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`4.
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`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.
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`5.
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`Braskem has violated, and continues to violate, the Chemical Data Reporting
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`(“CDR”) rule promulgated by the Environmental Protection Agency (“EPA”) under section 8(a)
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`of TSCA by failing to report 43.4 million pounds of benzene that it imported during 2013-2015
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`for the 2016 CDR Update.
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`6.
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`Benzene is a known carcinogen regulated by EPA and other agencies.
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`Braskem’s failure to report these large volume benzene imports is undermining EPA’s efforts
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`under TSCA to evaluate and address chemical risks and preventing the public from tracking the
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`movement of unsafe chemicals in commerce and monitoring their presence in communities.
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`7.
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`Braskem also imported large quantities of three other substances that were not
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`reported for the 2016 CDR Update: naphtha, paraxylene, and toluene.
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`8.
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`Braskem has failed to respond to a notice of violation from CEH. Accordingly,
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`absent an order from this Court requiring reporting under the CDR rule, defendant will continue
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`to be in non-compliance with TSCA.
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`TSCA Citizens’ Suit Provisions
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`2
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 3 of 12
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`9.
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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.”
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`10.
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` 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.”
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`11, Civil actions under section 20(a)(1)(B) of TSCA “shall be brought in the
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`United States District Court for the district in which the alleged violation occurred or in which
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`the defendant resides or in which the defendant’s principal place of business is located . .
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`.without regard to the amount in controversy or the citizenship of the parties.”
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`6.
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`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.”
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`TSCA Provisions
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`7.
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`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
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`present an unreasonable risk of injury to health or the environment.”
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`8.
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`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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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 4 of 12
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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.
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`Senate Rept. No. 94-698, 94th Cong. 2d Sess. (1976) at 3.
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`9.
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`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”), which
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`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 for
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`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
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`chemical no longer presents such [unreasonable] risk.”
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`Chemical Data Reporting Requirements under TSCA
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`10.
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`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
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`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.
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`4
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 5 of 12
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`11.
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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 --
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`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.
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`76 Federal Register 50818, 30819 (Aug. 16, 2011).
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`12.
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`Under the rule, reporting is required for all chemicals manufactured or imported
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`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 must report
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`every four years. A reporting cycle was completed in the fall of 2016, with reports due on
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`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.
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`13.
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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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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 6 of 12
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`14.
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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
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`risks, and noting uncertainties for [reportable] chemical substances.” 76 Federal Register 50823.
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`15.
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`Section 15 of TSCA provides that it is unlawful for any person to
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`"(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;"
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`16.
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`Persons who do not comply with the CDR rule “fail or refuse to . . . submit
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`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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`17. 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
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`headquarters at 1200 Pennsylvania Avenue NW in Washington DC.
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`18. 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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`19. Defendant’s violations of the CDR rule accordingly occurred in the District of
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`Columbia.
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`20. 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
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`District Court for the district in which the alleged violation occurred.”
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`6
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 7 of 12
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`21. Venue is proper in the District of Columbia under 28 U.S.C. §1391(b)(2) and 15
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`U.S.C. §2619(a), which provides that the district courts “shall have jurisdiction over suits
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`brought under this section, without regard . . . to the citizenship of the parties” and “process may
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`be served on the defendant in any judicial district in which the defendant resides or may be
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`found.”
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`Plaintiff’s Notices of Intent to Sue
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`22. 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 Braskem and a similar notice to EPA Acting
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`Administrator Jane Nishida.
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`23. These notices described with particularity defendant’s violations of CDR
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`requirements and provided the information called for in 40 CFR §702.62(b).
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`24. According to the signed receipts returned to plaintiff CEH, defendant Braskem
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`received its notice on February 24, 2021 and EPA received its notice on March 1, 2021.
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`25. Defendant did not respond to plaintiff’s notice of intent to sue.
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`26. 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).
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`Defendant’s Imports of Benzene during the 2011-2015 CDR Reporting Period
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`27. From June 2013 to April 2015 Braskem received at least 5 shipments of benzene
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`from Brazil. Five of the shipments were unloaded in Houston, Texas. These shipments totaled
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`43.4 million pounds.
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`28. Broken down by year, the benzene shipments were as follows:
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`Benzene Imports: 5 shipments, 43.4 million pounds
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`7
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 8 of 12
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`Year Exporter
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`2013 Braskem
`
`2014 Braskem
`
`2015 Braskem
`
`
`Country
`
`Importer
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`Pounds
`
`Ports
`
`Brazil
`
`Brazil
`
`Brazil
`
`Braskem
`
`Braskem
`
`Braskem
`
`6,737,326
`
`Houston, Texas
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`30,227,580 Houston, Texas
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`6,479,385
`
`Houston, Texas
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`29. No Form Us for these benzene shipments were identified in EPA’s CDR database
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`for the 2016 reporting cycle.
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`Public Health Consequences of Failure to Report Benzene Imports under the CDR Rule
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`30. Benzene is known to cause leukemia and other cancers of blood cells in humans,
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`based on evidence from studies in both people and laboratory animals. It has been designated as
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`a known human carcinogen by the International Agency for Research on Cancer, the National
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`Toxicology Program and EPA.
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`31. Benzene is among the 20 most widely used chemicals in the United States.
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`Benzene is commonly found in air in both urban and rural areas, and exposures are highest in
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`communities near refineries, chemical plants and other industrial facilities.
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`32. State and federal agencies charged with protecting public health need complete
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`and accurate information about the total amount of benzene produced and imported in the United
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`States and how and where benzene is distributed and used. This information is also critical for
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`communities exposed to benzene emissions and releases from industrial facilities.
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`33. CDR reporting is an essential tool for tracking the production and use of benzene
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`and Braskem’s failure to report large import shipments under the CDR rule weakens the ability
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`of EPA and local communities to evaluate and protect against serious threats to health.
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`Other Imported Chemicals Not Reported by Braskem under the CDR Rule
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`8
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 9 of 12
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`34. CEH and its consultants also reviewed publicly available data on Braskem’s
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`imports of other chemicals from Brazil during 2013-2015 and identified three substances that
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`were not reported for the 2016 CDR Update: naphtha, paraxylene, and toluene.
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`35.
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`Import shipments and volumes for the three substances were as follows:
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`Naphtha Imports: 1 shipment, 105.8 million pounds
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`Year Exporter
`
`Country
`
`Importer
`
`Pounds
`
`Ports
`
`2013 GM&T Switzerland/
`Gazprom/ Sahara Energy
`Resource
`
`Russia (via
`Murmansk)
`
`Braskem
`
`105,825,236 Houston,
`Texas; New
`York, New
`York; Newark,
`New Jersey;
`Wilmington,
`North Carolina
`
`
`Paraxylene Imports: 1 shipment, 11.5 million pounds
`
`
`Year Exporter
`
`Country
`
`Importer
`
`Pounds
`
`Ports
`
`2013 Braskem S.A. (UIB
`Camacari)
`
`Brazil
`
`Braskem
`
`
`Toluene Imports: 1 shipment, 4.6 million pounds
`
`
`11,572,064 Charleston,
`South Carolina
`
`Year Exporter
`
`Country
`
`Importer
`
`Pounds
`
`Ports
`
`2014 Braskem S.A. (UIB
`Camacari)
`
`
`
`Brazil
`
`Braskem
`
`4,627,502
`
`Houston,
`Texas
`
`
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`Claim for Relief
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`36. Plaintiff hereby incorporates by reference the allegations contained in paragraphs
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`1 through 35 as if fully set forth herein.
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`37. Section 20(a)(1)(B) of TSCA authorizes any person to file suit in a United States
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`district court against any person alleged be in violation of the Act to restrain such violation.
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`9
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 10 of 12
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`38. Plaintiff CEH provided notice to defendant Braskem and the EPA Administrator
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`more than 60 days before filing this action, as required by TSCA section 20(b)(1).
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`39. As described in this notice, defendant Braskem imported 43.4 million pounds of
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`benzene during 2013-2016 but failed to report these imports to EPA for the 2016 CDR Update in
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`accordance with 40 CFR Part 720.
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`40. Defendant’s benzene imports exceeded the 25,000-pound threshold for CDR
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`reporting and are therefore reportable under the CDR rule.
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`41. Defendant also imported naphtha, paraxylene, and toluene during 2013-2015 in
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`amounts above the reporting thresholds but failed to report these imports to EPA for the 2016
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`CDR Update in accordance with 40 CFR Part 720.
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`42. As the importer of these substances, defendant was and remains in violation of the
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`CDR reporting requirements under 40 CFR §711.8.
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`43. These violations comprise “prohibited acts” under TSCA section 15 and represent
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`“violations of this Act” for purposes of citizens’ suits section 20(a)(1)(B).
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`44. The Court should order defendant to report its importsof the four unreported
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`substances to EPA in compliance with the CDR rule and restrain defendant from any other
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`ongoing violations of CDR reporting requirements.
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`Request for Relief
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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 benzene, naphtha, paraxylene, and
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`toluene imports during 2013-2015 to EPA in 2016 was a violation of the
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`CDR reporting requirements at 40 CFR Part 711, a “prohibited act” under
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`
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`10
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`Case 1:21-cv-01724-DLF Document 1 Filed 06/28/21 Page 11 of 12
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`section 15 of TSCA and a “violation of this Act” actionable in a citizen’s suit
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`under section 20(a)(1)(B) of TSCA;
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`(2) Declaring that plaintiff has met the notice requirements and other prerequisites
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`for relief under TSCA section 20;
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`(3) Ordering defendant to file Form Us with EPA for its imports of these four
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`substances in compliance with CDR reporting requirements at 40 CFR Part
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`711;
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`(4) Ordering defendant to audit its manufacturing and import activities to
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`identify any other ongoing violations of CDR reporting requirements and
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`remedy such violations of CDR reporting requirements pursuant to TSCA
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`section 20;
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`(5) Awarding plaintiff its costs of suit and reasonable fees for attorneys and
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`expert witnesses in this action pursuant to 15 U.S.C. § 2619(c)(2); and
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`(6) Granting plaintiff such further and additional relief as the Court may deem
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`just and proper.
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`
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`Respectfully submitted this 28th day of June 2021.
`
`/s/ Robert M. Sussman
`Robert M. Sussman
`SUSSMAN & ASSOCIATES
`3101 Garfield Street, NW
`Washington, DC 20008
`(202) 716-0118
`Bobsussman1@comcast.net
`
`Attorneys for Plaintiff
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