Earthjustice, on behalf of Sierra Club, Montanans Against Toxic Burning, Huron Environmental Activist League and Downwinders at Risk filed a lawsuit in federal court today that challenges an egregious air pollution loophole supported by the U.S. Environmental Protection Agency. The suit disputes the Obama EPA’s unprecedented assertion that burning industrial solid waste as a fuel—akin to coal or natural gas—is a form of recycling, and therefore not subject to key provisions of the Clean Air Act that protect people from the harmful air emissions that result. Industry groups have pressed previous administrations long and hard for just such a favor, but the Obama administration is the first to acquiesce so broadly to their demands.

Under the Clean Air Act, any facility that burns industrial solid waste is supposed to be regulated as an incinerator, which would ensure that the toxic air emissions from such burning are appropriately 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 Obama 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.

“This regulatory loophole permits the burning of industrial wastes at nearly 185,000 smaller plants across the country that do not have to control or monitor their toxic pollution,” said Jane Williams, chair of the Sierra Club’s Air Toxics Task Force. “For example, although a large chemical plant would have to control the emissions when it burns its waste chemicals, this loophole would allow the plant’s owner to ship those wastes to a smaller facility and burn them there without having to control or monitor the emissions—even though doing so will greatly increase the health risk to nearby neighborhoods. To make matters worse, dirty unmonitored burning will be much cheaper, so it will also become much more prevalent.”

Community groups were also appalled by EPA’s decision to allow the burning of whole tires in facilities that do not have to satisfy the Clean Air Act’s protective incineration requirements. “The Holcim cement company has been trying for years to burn whole tires in our community,” said Jennifer Swearingen of Montanans Against Toxic Burning. “It is well known that tire-burning generates high levels of toxic pollution, including dioxins, which are highly hazardous and persistent carcinogens. The state of Montana hasn’t allowed this to happen yet, but it is deeply disturbing—and an insult to common sense—that the Obama Administration may just have opened the door to it.”

“This should be called the ‘burn to earn’ loophole,” said Bill Freese of the Huron Environmental Activist League. “Polluters now have a strong financial incentive to burn their wastes in one of the 185,000 uncontrolled facilities across the country. Burning waste is undoubtedly cheaper than disposing of it properly, and it’s certainly cheaper to burn something without pollution controls than with them. Industry will profit from this, but our communities will suffer tremendously.”

“Recycling is supposed to reduce impacts to our environment, not aggravate them,” said Jim Schermbeck with Downwinders at Risk. “We’re not fooled by this attempt to greenwash waste burning. Communities are going to be hard hit by this decision. Who in their right mind would consider a process that puts uncontrolled amounts of mercury, benzene, dioxins and other toxic killers in our air a form of recycling? It will go down as an indelible stain on the administration’s record of transparency and protecting public health.”

“This is a clear violation of the Clean Air Act, and the EPA knows it,” said Earthjustice attorney, James Pew. “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.”