The U.S. Environmental Protection Agency (EPA) announced yesterday that it is officially withdrawing a December 2008 rule that reclassified thousands of tons of hazardous waste as fuel, allowing it to be burned instead of sensitively managed. The 2008 rule was one of the Bush administration’s midnight regulations, many of which stripped away existing environmental protections.

EPA recognized that the 2008 rule, called the emissions comparable fuel (ECF) exclusion rule, “was criticized for potentially allowing hazardous waste to evade the hazardous waste regulatory system, and for being difficult to administer.” EPA had originally argued that hazardous wastes excluded from strict regulation under the 2008 rule would be no more dangerous than, or comparable to, fuel oil when incinerated. Environmentalists objected and sued EPA, saying the pollution would jeopardize communities.

In a statement on yesterday’s news, Earthjustice attorney James Pew said, "Calling hazardous waste a 'fuel' doesn't make it any less polluting when burned in incinerators and boilers across the country. Thankfully, today's action means these materials will be regulated as what they are: 'hazardous waste.'"

The Bush administration’s shrewd timing made it difficult for the Obama administration to address many midnight regulations, including the ECF exclusion rule. Bush’s EPA not only finalized the rule before President Bush left office, it set an effective date of Jan. 20, 2009, the day President Obama was sworn in.

Obama’s EPA only had two real choices: take a gamble and let the courts decide if the rule was consistent with environmental law or enter into an entirely new rulemaking that would overturn the 2008 rule. EPA chose the latter, proposing to withdraw the ECF exclusion rule in December 2009.

Although the rule has been in effect since January 2009, the rule’s real world impact was likely limited, EPA says. Waste management is typically handled at the state level, and the hazardous waste exclusion had not yet trickled down:

Since the ECF exclusion was promulgated in December 2008 and became effective in January 2009, and since we are not aware that any staes have adopted or applied for authorization for this rule, we would expect that very few facilities, if any, were managing hazardous secondary materials pursuant to this rule.