On January 13, 2012, we authored an Alert titled
"Status of Boiler MACT Up in the
here. Well, it has almost been a year, and the
status of Boiler MACT is still up in the air.
Our previous Alert described the status of the boiler
regulations and the amendments proposed by EPA on December 21,
2011. At the time, EPA had indicated its intent to issue
amendments to the Boiler MACT (major sources), Boiler GACT (minor
sources), and CISWI (incinerators) rules in June 2012.
A key component of EPA's December 2011 proposed amendments was
a proposal to reset the 3 year compliance schedule to begin upon
promulgation of the amendments to the Boiler MACT and CISWI
In late Spring 2012, EPA announced its intention to delay
promulgation of the amendments to the boiler regulations until
mid-July. That didn't happen. In an October
29, 2012 status report to the U.S. Court of Appeals – D.C.
Circuit, the EPA stated that the agency is "still in the
process of analyzing the data and information" submitted in
response to its December 2011 proposed amendments. EPA's
status report did not indicate when it would finalize the
amendments to the regulations. So, Boiler MACT is still in
flight with no E.T.A.
On July 20, 2012, we authored an Alert "EPA
Issues No Action Assurance Regarding Area Source Boiler
here. In that Alert, we described EPA's announcement
that it had extended its No Action Assurance for owners and/or
operators of existing industrial, commercial and institutional
boilers at area (minor) sources of hazardous air pollutants stating
that the Agency would not enforce the requirement to conduct an
initial tune-up by March 21, 2012. The EPA memorandum stated
that the No Action Assurance would remain in effect until either
(1) December 31, 2012 or (2) the effective date of a final rule
addressing the reconsideration of the Boiler GACT (minor source)
rule, whichever occurs earlier. Thus, we believe it likely
that EPA will take some action, whether it promulgates amendments
to the Boiler GACT regulation or issues an additional extension of
its No Action Assurance, before the end of the year. In the
meantime, when facilities are evaluating their future energy
alternatives, they should be considering the potential impacts of
these upcoming boiler rules, the new ambient air quality standards
and the new regulation of condensable particulates.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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