Two senators faulted the  Environmental Protection Agency officials for deciding, at the request of the Sierra Club, to invalidate previously approved air programs in 39 states.

Under the old policy, manufacturers did not have to suffer Clean Air Act penalties if the excess emissions came about during periods of “start up, shutdown, or malfunction” (SSM).  The Sierra Club opposed this long-standing exemption.

“Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit,” wrote Sen. David Vitter, R-La., and Sen. Jeff Sessions, R-Ala., in a letter yesterday to Gina McCarthy, President Obama’s nominee to lead the EPA. “In other words, EPA went out of its way to resolve the SSM petition in a coordinated settlement with Sierra Club.” The agency now says that 36 of those states are not implementing federal law appropriately.

The EPA proposed the rule change in February with only a 30-day comment period, which has drawn the condemnation of 17 attorneys general in the affected states.

“EPA’s proposed rule seeks to force 39 states to rewrite regulations previously adopted in accordance with state and federal law and approved by the EPA,” the state attorneys wrote to the EPA. “Thirty days is an entirely inadequate amount of time for states to undertake these important analyses and to file written comments.”

The senators suggested that the EPA is setting a double-standard for the states. The SSM exemption has been approved by EPA since 1972 and has been a key element of most EPA-approved State Implementation Plans (SIPs),” they wrote.  “In fact, EPA has included SSM exemptions in EPA’s own standards, including the New Source Performance Standards, for decades.  Notwithstanding 40 years of precedent to the contrary, EPA has now decided that the SIPs of 36 states are legally inadequate because of their SSM provisions.”