State Sues E.P.A. for Files on Household Pollutants


By DANNY HAKIM
Published: February 15, 2006

ALBANY, Feb. 14 - As New York and other states grapple with the
gradually tightening requirements of the Clean Air Act, the
Environmental Protection Agency is refusing to turn over records
detailing the levels of smog-causing compounds found in common household
and industrial products like paints and varnishes.

The Cost of Pollution Such volatile organic compounds are not only
significant contributors to smog, but they have also been linked to a
variety of health problems, including the rising asthma rates in cities
like New York and Los Angeles.

After trying for two years to obtain the records, New York State sued
the E.P.A. on Tuesday, saying that the agency has violated the Freedom
of Information Act by denying the state's repeated requests for the
records. State officials say they need the records to draw up a plan to
comply with strict new rules on smog-forming pollution being phased in
under the Clean Air Act. The records are submitted to the E.P.A. by
manufacturers of paint products.

New York and California, as well as some other states on the East Coast,
have stricter regulations on volatile organic compounds because they
have worse summertime smog problems than other states.

In refusing to turn over the records, the E.P.A. appears to be siding
with paint manufacturers, which have been battling in court to prevent
state attempts to regulate their products. And the paint companies have
been aided in the past by at least one influential friend, Senator
George V. Voinovich, an Ohio Republican who personally appealed to the
E.P.A. on behalf of Sherwin-Williams, based in Cleveland.

A letter he wrote in October 2004 asked the agency to heed the
industry's objections to allowing some states to tighten their
regulations of volatile organic compounds.

Now states are having trouble determining even what the levels of such
pollutants are. Companies like Sherwin-Williams are stating that the
information about the pollutants in their products, which they submitted
to the E.P.A., is proprietary and represents trade secrets, an assertion
that the agency has supported, according to New York's court filing.

New York officials say the information should be made public, arguing
that the agency, despite a request under the Freedom of Information Act,
has not made a sincere effort to determine, as required by law, whether
companies were making valid claims that the data was a trade secret.

One of the few documents that New York has received from the E.P.A.
indicates that paint producers are often using a loophole in the
regulatory system to pay their way out of reducing the pollutant levels
of their products. Sherwin-Williams paid more than $5 million in 2002 to
avoid fully reducing its levels of volatile organic compounds to
required limits, according to the document. The amount was more than 15
times the noncompliance fee paid by any competitor.

In a statement on Tuesday, New York's attorney general, Eliot Spitzer,
said that "the state is entitled by law to this critical information so
it can effectively implement its clean air programs to preserve public
health."

He added, "The E.P.A. has no grounds on which to deny such a request."

Mr. Spitzer, a Democrat, is suing on behalf of the state's Department of
Environmental Conservation, a branch of Gov. George E. Pataki's
administration.

An E.P.A. spokesman, John R. Millett, said in a statement on Tuesday
that the agency's intent "is to provide New York with all the
information it is entitled to. The agency is looking into the matter in
order to provide the state a final response to its request."

Conway G. Ivy, a senior vice president at Sherwin-Williams, said a great
majority of his company's products complied with the regulations on
volatile organic compounds, though not the specialty products like
paints used on roads or for industrial maintenance. "Our customer base
indicates they would prefer the performance of these noncomplying
products," he said.

The stalemate is the latest in a series pitting states, including those
like New York and California, which have Republican governors, against
the environmental policies of the Bush administration. In one battle,
automakers, with the support of the E.P.A., are suing both New York and
California over state plans to aggressively regulate emissions of carbon
dioxide from cars and trucks. The Bush administration has rejected such
state moves.

Last year, Mr. Pataki and Gov. Arnold Schwarzenegger of California wrote
a letter to President Bush asking him to preserve their ability to set
stricter environmental rules.

The new lawsuit comes as the Bush administration has come under
criticism for restricting the flow of information on issues related to
smog-forming pollutants and global warming emissions. Last month, a top
NASA scientist said that Bush administration officials were trying to
censor his views on climate change. Last year, the administration
delayed the release of a report on the gas mileage of cars and trucks
until after the voting on the energy bill.

S. William Becker, executive director of the State and Territorial Air
Pollution Program Administrators, an association of state and local air
quality regulators, said the disclosure that 75 companies like
Sherwin-Williams were paying fees in lieu of at least some of their
required pollutant reductions was troubling.

"What E.P.A. is doing is allowing the industry to buy their way out of
federal regulations," he said. He added that states would be forced to
regulate similar pollutants from the small businesses that cannot afford
such fees, like bakeries and auto body repair shops.

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