16 February – LAWFUEL – The Law News Network – Federal Agency Withhe…

16 February – LAWFUEL – The Law News Network – Federal Agency Withheld Information on Airborne Paint Toxins from State Regulators
Attorney General Eliot Spitzer today announced a lawsuit against the federal Environmental Protection Agency (EPA) for repeatedly failing to provide information about toxic air pollution requested by the New York State Department of Environmental Conservation (DEC).

The DEC had sought reports by manufacturers and importers of paints, stains, and varnishes on the content of volatile organic compounds in their products. These reports are filed regularly with the EPA and the public is guaranteed access to information in the reports under the federal Freedom of Information Act and the Clean Air Act.

“The state is entitled by law to this critical information so it can effectively implement its clean air programs to preserve public health and the environment,” Spitzer said. “The EPA has no grounds on which to deny such a request.”

A 1998 EPA regulation limited the amount of volatile organic compounds that can be used in certain paints, stains, and varnishes. Volatile organic compounds contribute to smog, which the EPA says can cause permanent lung damage, asthma and even death. Smog is most prevalent during warm weather and is especially harmful to people who spend extended periods of time outdoors.

Smog also weakens plants, reduces crop yields, and harms forests.
The EPA regulation, which was the result of a negotiation between EPA and paint manufacturers, allows the companies to exceed the limit on volatile organic compounds in their products if they pay a fee to the EPA based on the amount by which their paints, stains or varnishes exceed the limit for volatile organic compounds. Based on a state review of the limited documents provided by EPA, these so-called “pay to spray” fees appear to range from hundreds of dollars a year to the more than $5 million paid by Sherwin Williams.

Additional federal regulations require the paint manufacturers to file annual reports with the EPA that summarize how many gallons of paint, stain, and varnish they manufacture that exceed federal limits on volatile organic compounds.

The federal Freedom of Information Act requires that this information be shared with the public, and the federal Clean Air Act allows public access to records that are required to be collected by that law. After being denied access to records about volatile organic compounds for nearly two years, the state was left with no option but to sue the federal government for improperly withholding documents in violation of both laws.

The case was filed today in the United States District Court for the Northern District of New York and is being handled by Assistant Attorneys General Susan Taylor and John Sipos of the Attorney General’s Environmental Protection Bureau.

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