Not all burning is bad. For example, campfires rule—when they are done sensitively. I don’t mean with tenderness, but rather with attention paid to the ecosystem and the importance of the fallen wood within it. Those fires bring light, heat and comfort to our small corners of the wild.

But in other corners of the world, bad burning reigns, and the Obama administration has given it a new throne. The Obama Environmental Protection Agency is making the unprecedented assertion that burning industrial waste as a fuel—akin to coal or natural gas—is a form of recycling. This Bush-era line of logic will allow and in fact incentivize burning of industrial waste—things like scrap plastics, used chemicals and industrial sludges—in around 185,000 unregulated boilers across the country. These pieces of equipment aren’t subject to pollution controls, air monitoring, or reporting requirements.

Should companies choose to burn waste in one of these boilers—and no doubt many will, as it will be a cheap way to make their waste go away—nearby communities will face increased emissions of mercury, benzene, dioxins and other hazardous air pollutants, and worse yet, they most likely won’t even know it. Industry has pressed long and hard for such a gift, but the Obama administration is the first to give it so freely. Today, Earthjustice filed suit against the EPA to challenge this egregious loophole.

Under the Clean Air Act, any facility that burns industrial solid waste is supposed to be regulated as an incinerator, which ensures that toxic emissions from such burning are monitored and controlled to protect public health. But whether a facility is actually regulated as an incinerator depends on how solid waste is defined. The (O)EPA issued a definition that exempts broad categories of industrial solid waste, including scrap plastics, spent solvents and chemicals, industrial sludges and other materials if they are burned for energy by the company that generates them. The agency has also exempted whole tires, asphalt, and chemically treated wood waste no matter where they are burned.

Says Earthjustice’s Jim Pew: “This is a clear violation of the Clean Air Act, and the EPA knows it. The Bush administration attempted a less sweeping version of this loophole in 2002. We challenged that position, which a federal court rightfully concluded was against the law. And yet here we are again, with the EPA trying to slip this industry favor past the American public and the courts, no doubt because they think and hope nobody is paying attention.”

Thankfully, Jim and our clients on this case are paying attention. Earthjustice filed the suit on behalf of Sierra Club, Montanans Against Toxic Burning, Huron Environmental Activist League, and Downwinders at Risk.