By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) released on June 30, 2022, a report entitled “Additional Internal Controls Would Improve the EPA’s System for Electronic Disclosure of Environmental Violations.” OIG conducted the evaluation to determine whether EPA’s process for screening self-reported violations through its electronic disclosure, or eDisclosure, system is effective and ensures that significant concerns, such as criminal conduct and potential imminent hazards, are addressed by the Office of Enforcement and Compliance Assurance (OECA). According to OIG’s report, the goal of the eDisclosure system is to provide an efficient mechanism for regulated entities to self-disclose violations of federal environmental laws and regulations. Self-disclosed violations are automatically processed under the EPA’s audit policies. EPA subsequently screens certain eDisclosure submissions to ensure that significant concerns, such as criminal conduct and potential imminent hazards, are properly addressed.
 
OIG states that the eDisclosure system does not have adequate internal controls in place to ensure that EPA’s screening process is effective and that significant concerns, such as criminal conduct and potential imminent hazards, are identified and addressed by OECA and the EPA regions. OIG notes that there is no formal, written national guidance or eDisclosure-specific training available on how EPA staff should conduct screening or delineate staff responsibilities. According to OIG, as a result, most regions inconsistently screen for significant concerns or do not screen at all because they believe OECA is responsible for that task, do not have access to the eDisclosure system, or have other resource limitations. Further, EPA does not have performance measures and does not systematically track eDisclosure system data. Finally, OIG states the eDisclosure system’s reporting tool “does not allow staff to effectively or robustly use or track eDisclosure submissions.” OIG concluded that without national screening guidance, training, effective monitoring, and Central Data Exchange improvements, there is a risk that significant concerns are not being addressed and that the impacts of the EPA’s eDisclosure system will remain limited and unknown.
 
OIG recommends that the OECA Assistant Administrator develop national guidance that includes a process for screening eDisclosure submissions for significant concerns; provide eDisclosure-specific training to EPA headquarters and regions to clarify expectations, establish staff responsibilities, and communicate best practices; develop performance measures for the eDisclosure system, as well as a monitoring plan to track its effectiveness; and assess eDisclosure system functionality to identify and implement improvements. According to OIG, OECA agreed with all four of its recommendations and proposed acceptable corrective actions and estimated completion dates. All recommendations are resolved with corrective actions pending. Where appropriate, OIG revised the report based on technical comments provided by OECA.

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By Lynn L. Bergeson and Carla N. Hutton

The New York State Department of Environmental Conservation (NYS DEC) held a virtual public meeting on September 15, 2021, on its forthcoming regulations to implement the Toxic Chemicals in Children’s Products Law. New York’s Environmental Conservation Law (ECL) Article 37 Title 9 establishes an ingredient disclosure program and prohibits certain chemicals in children’s products. ECL Article 37 instructs NYS DEC to promulgate lists of chemicals of concern and high priority chemicals that must be disclosed if present in children's products by March 1, 2022. ECL Article 37 also prohibits the sale of children’s products containing benzene, asbestos, or tris(1,3-dichloro-2-propyl) phosphate effective January 1, 2023. NYS DEC has posted a list of chemicals under consideration and their practical quantification limits. The list includes the evidence that NYS DEC has identified to justify listing the chemicals. Comments may be submitted via e-mail to .(JavaScript must be enabled to view this email address) or via mail to:

Emily Dominiak
NYS DEC -- Division of Materials Management
625 Broadway
Albany, NY 12233-7252
Comments must be submitted by 5:00 p.m. (EDT) on October 15, 2021.

According to NYS DEC’s website, NYS DEC has made a recording of the September 15, 2021, meeting available for review. The website notes that NYS DEC “will hold a formal public comment period on the proposed rule at a later date, which will be published in the Environmental Notice Bulletin.”

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By Lynn L. Bergeson and Carla N. Hutton
 
The New York State Department of Environmental Conservation (NYSDEC) will hold a virtual public meeting on May 26, 2021, at 1:00 p.m. (EDT). NYSDEC will present topics for discussion related to implementation of the recently enacted law, which created ingredient disclosure requirements for children’s products.  Title 9 of Article 37 of the Environmental Conservation Law (ECL) establishes an ingredient disclosure program and prohibits certain chemicals in children’s products. ECL Article 37 instructs NYSDEC to promulgate lists of chemicals of concern and high-priority chemicals by March 1, 2022. It also prohibits the sale of children’s products containing benzene, asbestos, or tris(1,3-dichloro-2-propyl) phosphate effective January 1, 2023. NYSDEC states that it is in the process of developing a rule to implement portions of the law. NYSDEC expects the rule to address the specific product categories that are covered, what chemicals and supporting information must be disclosed, details on how to obtain a waiver from reporting or the sales prohibition, and the fees associated with reporting and applying for a waiver. NYSDEC notes that it will hold a formal public comment period on the proposed rule at a later date. Stakeholders must register to attend the virtual public meeting.

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By Lynn L. Bergeson and Carla N. Hutton
 
As reported in our March 23, 2020, memorandum, on March 18, 2020, a coalition of non-governmental organizations (NGO) filed suit in the U.S. District Court for the District of Columbia against the U.S. Environmental Protection Agency (EPA), claiming that EPA fails to disclose information about new chemical substances under the Toxic Substances Control Act (TSCA).  Environmental Defense Fund v. Wheeler, No. 1:20-cv-762.  On July 27, 2020, the parties submitted a joint case management statement.  According to the statement, the parties agree that the case can be resolved by motions for summary judgment and that there is no need for a trial.  The parties state that they disagree about whether administrative records exist and the availability and scope of discovery, however.  Resolving these questions will implicate the timing for any discovery, the appropriate deadline for final amended pleadings, and the appropriate schedule for summary judgment briefing.  The parties note that they are currently discussing options to resolve as many of these questions as possible and that they believe successfully resolving them could reduce the number and complexity of procedural issues before the court.  In particular, according to the statement, the parties are discussing options to narrow the scope of factual and legal issues presented, which may minimize the potential for future disputes over the availability and scope of discovery.  The parties propose to submit an updated case management statement no later than August 31, 2020.

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By Lynn L. Bergeson and Carla N. Hutton
 
The New York State Department of Environmental Conservation (NYSDEC) will hold a public meeting on February 24, 2020, at 1 p.m. (EST) in Albany, New York, “to discuss amendments to the household cleansing product rules that are being considered for adoption.”  According to NYSDEC, amendments include specifying what information must be reported about covered products and their ingredients, how information should be shared with NYSDEC for the public record, the type of studies that must be reported, and how confidential business information (CBI) should be handled.  NYSDEC states that during the meeting, it “is looking for input on disclosure of nonfunctional ingredients, issues around confidential information, and how to disclose when a product’s formulation temporarily changes, as well as other regulatory concerns.”  Registration is required to attend the meeting.  NYSDEC notes that it “will hold a formal public comment period at a later date once it officially proposes the regulations.”
 
As reported in our September 4, 2019, blog item, on August 27, 2019, the State of New York Supreme Court invalidated the Household Cleansing Product Information Disclosure Program (Disclosure Program).  Information related to NYSDEC’s prior delay of its enforcement of its Disclosure Program is available here, and general information regarding the Program and its extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products is available here.  The court found that the Disclosure Program was established in violation of the State Administrative Procedure Act (SAPA) and the New York State Constitution.  In making this finding, the court held that the Program was a “rule” as argued by Petitioners and not “guidance” for which adherence to SAPA was not required, as argued by NYSDEC.  A more detailed analysis and commentary are available in our August 30, 2019, memorandum, “NY Department of Environmental Conservation Household Cleansing Product Information Disclosure Program Ruled ‘Null and Void.’”

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By Lynn L. Bergeson and Lisa R. Burchi
 
In a significant victory for industry, on August 27, 2019, the State of New York Supreme Court invalidated the New York Department of Environmental Conservation (NYDEC) Household Cleansing Product Information Disclosure Program (Disclosure Program).  Information related to NYDEC’s prior delay of its enforcement of its Disclosure Program is available here, and general information regarding the Program and its extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products is available here.
 
Two trade associations, the Household and Commercial Cleaning Products Association (HCPA) and the American Cleaning Institute (ACI) (Petitioners), filed the lawsuit last October.  Petitioners sought declaratory relief and a judgment invalidating the Disclosure Program on the basis that the Program was a “rule” for which NYDEC did not comply with its State Administrative Procedure Act (SAPA) rulemaking procedures.  Petitioners also argued that the Program was established in violation of Article IV Section 8 of the New York State Constitution, was issued in excess of NYDEC’s statutory authority, and was arbitrary and irrational.
 
The court found that the Disclosure Program was established in violation of SAPA and the New York State Constitution.  In making this finding, the court held that the Program was a “rule” as argued by Petitioners and not “guidance” for which adherence to SAPA was not required, as argued by NYDEC.  The court also found that “since there is no opt out provision whereby petitioners may choose to deviate from the program, the Disclosure Program is not mere guidance.”  The Disclosure Program is thus “null and void and the matter is remitted back to DEC with the directive to comply with SAPA.” Since the decision was reached based on violations of SAPA, the court did not address the other bases upon which Petitioners sought to invalidate the Program.  A more detailed analysis and commentary are available in our August 30, 2019, memorandum, “NY Department of Environmental Conservation Household Cleansing Product Information Disclosure Program Ruled ‘Null and Void.’”

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By Lynn L. Bergeson and Carla N. Hutton
 
On June 12, 2019, the New York State Department of Environmental Conservation (NYSDEC) announced that it will delay enforcement of the Household Cleansing Product Information Disclosure Program (Disclosure Program) from July 1, 2019, to January 1, 2020.  NYSDEC states in the June 12, 2019, Environmental Notice Bulletin that it will begin enforcing any violations of the required disclosure as of January 2, 2020.  According to the notice, NYSDEC “will continue to work with any manufacturers on the design of their websites, or entertain any questions regarding compliance with website design or safety data sheets.”  NYSDEC “remains committed to working with the manufacture[r]s to implement this program in the best manner possible.”
 
As reported in our January 14, 2019, memorandum, “NYDEC Delays for Three Months Enforcement of its Household Cleansing Product Information Disclosure Program,” on January 9, 2019, NYSDEC previously delayed enforcement of its Disclosure Program.  The Disclosure Program sets forth extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products.  Our June 7, 2018, memorandum, “New York Launches Disclosure Program Intended to Protect Consumers from Chemicals in Household Cleaning Products,” provides an in-depth review of important information from the Disclosure Program Certification Form and Program Policy, including covered products and definitions, information to be disclosed, and the lists of chemicals of concern covered by the Program.

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By Lynn L. Bergeson and Carla N. Hutton

On June 6, 2018, the New York State Department of Environmental Conservation (NYSDEC) released its final policy and form for manufacturer disclosures under the Household Cleansing Product Information Disclosure Program.  The Disclosure Program is similar to the recently enacted California Cleaning Product Right to Know Act of 2017 which requires the disclosure of cleaning product ingredients by way of website or product label.  The Household Cleansing Product Information Disclosure Program requires manufacturers of cleaning products sold in New York to disclose chemical ingredients and identify any ingredients that appear on authoritative lists of chemicals of concern on their websites.  New York states that it “will be the first state in the nation to require such disclosure and the State’s program goes beyond initiatives in other states by requiring the robust disclosure of byproducts and contaminants, as well as chemicals with the potential to trigger asthma in adults and children.”  NYSDEC has posted the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy and a response to comments.

Our recent memorandum provides an in-depth review of important information from the Disclosure Program Certification Form and Program Policy, including covered products and definitions, information to be disclosed, the lists of chemicals of concern covered by the Program, and the effective dates.  With the first disclosures due July 1, 2019, manufacturers need to review the Program Policy and begin compiling information concerning the ingredients of their products.

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By Lynn L. Bergeson and Margaret R. Graham

On October 15, 2017, California Governor Jerry Brown signed California Senate Bill (S.B.) 258, the Cleaning Product Right to Know Act of 2017, which will require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website.  More information on S.B. 258 is available in our memorandum “California Bill Would Require Disclosure of Cleaning Product Ingredients” and on our blog under key word cleaning products.

Bergeson & Campbell, P.C. (B&C^®) will soon be releasing a detailed memorandum S.B. 258 to be available on our regulatory developments webpage. 

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By Lynn L. Bergeson and Margaret R. Graham

It is widely reported that California Governor Jerry Brown imminently will sign California Senate Bill (S.B.) 258, the Cleaning Product Right to Know Act of 2017, which would require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website.  The final version of S.B. 258 was passed by the California Senate on September 13, 2017, by a vote of 27 to 13.  The California Assembly passed the bill by a vote of 55 to 15, with nine votes not recorded, on September 12, 2017.  Brown has until October 15, 2017, to sign the bill.  The online disclosure requirements would apply to a designated product sold in California on or after January 1, 2020, and the product label disclosure requirements would apply to a designated product sold in California on or after January 1, 2021.  More information on S.B. 258 is available in our memorandum “California Bill Would Require Disclosure of Cleaning Product Ingredients.”

It is also being reported that the State of New York’s Department of Environmental Conservation’s (DEC) Division of Materials Management will soon release formally a similar initiative, the Household Cleaning Product Information Disclosure Program.  This program will require manufacturers of domestic and commercial cleaning products distributed, sold, or offered for sale in New York State to furnish information regarding such products in a certification form prescribed by the Commissioner, and is expected to require disclosure of many more chemicals than S.B. 258.  The period for comments on the draft certification form and guidance document related to the program ended on July 14, 2017.

Bergeson & Campbell, P.C. (B&C^®) will soon be releasing a detailed memorandum on both developments to be available on our regulatory developments webpage.

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