4 The record articles

No Action Assurance Implications for Boiler MACT and CISWI Rules

Posted: December 13th, 2012

Author: All4 Staff 

The presidential election has come and gone, and there is still much uncertainty when it comes to the status of the Maximum Achievable Control Technology (MACT) standards for Major and Area Source Boilers (Boiler MACT), Commercial and Industrial Solid Waste Incineration (CISWI), and Nonhazardous Secondary Materials (NHSM) rules, collectively referred to as the “4 Rules.”  The 4 Rules were proposed together on June 4, 2010, and promulgated together on March 21, 2011, along with a notice of reconsideration for parts of the Major and Area Source Boiler MACT and CISWI rules.  U.S. EPA issued a notice delaying the effective dates of the Major Source Boiler MACT and CISWI rules on May 18, 2011 in anticipation of proposed amendments to the 4 Rules, which were ultimately published on December 23, 2011, along with the reconsideration of the Major and Area Source Boiler MACT and CISWI rules.  The May 18, 2011 delay of the effective dates was subsequently vacated and remanded on January 9, 2012.  Now nearly a year later, industry and environmental groups alike are anxiously awaiting promulgation of the amended and reconsidered rules.  Please refer to Susie’s recent blog post for a more detailed history of the 4 Rules since March 2011.

Following the January 2012 vacatur and remand of the delay of effective dates, U.S. EPA issued a series of No Action Assurance letters (on February 7, March 13, and July 18, 2012) intended to ease concerns from industry about past and upcoming compliance requirements contained in the March 2011 final rules.  Many facilities found themselves in a unique situation where they would have been required to comply with notification requirements prior to the January 2012 vacatur and remand had the May 2011 delay of effective dates not been issued.  Other facilities found themselves in a different unique situation where they were required to comply with an upcoming boiler tune-up requirement that, according to the December 2011 proposed rules, would be required a year later.  In the No Action Assurance letters, U.S. EPA stated that it would “exercise its enforcement discretion to not pursue enforcement action” for failing to complete the following requirements associated with the Major Source Boiler MACT, Area Source Boiler MACT, and CISWI rules:

Major Source Boiler MACT Rule

  • 40 CFR §63.7545(b) – submit an Initial Notification for existing affected sources that started up prior to May 20, 2011 by September 17, 2011.
  • 40 CFR §63.7545(c) – submit an Initial Notification for new or reconstructed affected sources that started up on or after May 20, 2011 no later than 15 days after actual startup.

Area Source Boiler MACT Rule

  • 40 CFR §63.11196(a)(1) – complete an initial tune-up for existing coal-fired units less than 10 MMBtu/hr and existing biomass- or oil-fired units by March 21, 2012.
  • 40 CFR §63.11225(a)(4) – submit a Notification of Compliance Status (NOCS) regarding the March 21, 2012 initial tune-up requirement by July 19, 2012.


  • 40 CFR §60.2190 – submit a notification prior to construction for new CISWI units that includes a statement of intent to construct, the anticipated date of commencing construction, the requirements of §60.2050 (siting requirements), the requirements of §60.2055 through 60.2065 (waste management plan requirements), and the anticipated date of initial startup.
  • 40 CFR §60.2230/60.7(a)(1) – submit a notification of construction for new CISWI units no later than 30 days after construction commences.
  • 40 CFR §60.2230/60.7(a)(3) – submit a notification of startup for new CISWI units within 15 days after initial startup.

The No Action Assurance expires on December 31, 2012 for the Major and Area Source Boiler MACT requirements (after an extension for the Area Source Boiler MACT) and on April 30, 2013 for the CISWI rule requirements, or upon promulgation of final rules addressing the proposed reconsiderations, whichever comes first.  All three letters are clear in stating that the No Action Assurance applies “only to the timeliness of [the notification and tune-up] requirements, not to the underlying requirements themselves.”  When the amendments and reconsiderations of the 4 Rules were expected to be finalized earlier this year, the now-looming expiration dates did not pose much of a concern.  But with the end of the year now upon us, the obvious question is “what happens if the rules are not finalized before the No Action Assurance expires?”

Since November, we’ve heard a number of predictions about when the 4 Rules would be promulgated – as early as immediately following the election, no later than December 20, 2012 to coincide with a consent decree deadline for the related Portland Cement MACT rule, and as late as the first or second quarter of 2013.  The latest predictions appear to be favoring the December 20, 2012 possibility.  If we do see new rules by the end of the year, the No Action Assurance letters will have ultimately served their purpose as the requirements they protected industry from violating will have been replaced in the new rules.  If we don’t see new rules by the end of the year, we would expect U.S. EPA to extend the No Action Assurance beyond the current expiration dates; however, they are not obligated to do so, nor have they given any indication of a possible extension.  In the unlikely event that neither final rules nor extensions to the No Action Assurance are issued by December 31, 2012, industry could find itself in a non-compliance scenario.

Facilities concerned about the possibility of non-compliance come January 1, 2013 would be wise to be prepared for completing the notification and tune-up requirements covered by the No Action Assurance before the end of the year.  Completing the Major Source Boiler MACT initial notification may be simple for facilities that are certain of which rule their boiler will be regulated by, but for facilities that are still unsure about whether their boiler will be regulated as a boiler under Boiler MACT or as an energy recovery unit (ERU) under the CISWI rule, that task could be more complicated.  Affected area source facilities should be prepared to comply with the initial tune-up requirement as soon as possible, since if the December 2011 amendments are finalized as proposed, the tune-up will be required by March 21, 2013.  When do you think the final rules will be promulgated?  Let me know in the comments, and stay tuned as we continue to follow the status of the 4 Rules.


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