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EPA Extends No Action Assurance for Area Source Boiler Rule
Posted: 07/24/2012

The United States Environmental Protection Agency (EPA) recently announced that it is extending the “No Action Assurance” (NAA) issued on March 13, 2012. The original NAA stated that EPA would not pursue enforcement action against facilities that failed to conduct initial tune-ups on certain boilers by March 21, 2012, as required by the air toxics regulation for existing boilers at area sources. EPA refers to this regulation as the “Area Source Boiler Rule.” The recent announcement expands the NAA to apply to the July 19, 2012, deadline for submitting a “Notification of Compliance Status” for the initial tune-ups.

EPA emphasized that this applies only to the requirement to submit the NOCS for the initial tune up and not to any other provisions of the Area Source Boiler Rule. EPA also announced that it is amending the expiration date of the March 13, 2012, “No Action Assurance” so that it will expire when the final Area Source Boiler “reconsideration rule” is issued and becomes effective or December 31, 2012, whichever is earlier.

The federal regulation that EPA calls the Area Source Boiler Rule is formally called the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Area Sources: Industrial, Commercial and Institutional Boilers (found at 40 CFR Part 63 Subpart JJJJJJ). The Area Source Boiler Rule covers boilers located at area source facilities that burn coal, oil, biomass, or other solid and liquid non-waste materials. An area source is a facility with potential and actual emissions below 10 tons per year of any single hazardous air pollutant (HAP) and below 25 tons per year of all HAP combined. This rule does NOT apply to boilers that burn only gaseous fuels or any solid waste.

EPA’s NAA applies to owners and operators of boilers that were required under the Area Source Boiler Rule to conduct a tune-up by March 21, 2012. This was the compliance date for “existing boilers” (those constructed prior to June 4, 2010) in the following categories: coal-fired boilers less than 10 MMBtu/hr, and all sizes of biomass or oil-fired boilers.

In the memorandum extending the NAA expiration date, EPA states, in part:

“To date, a final rule addressing the proposed reconsideration of the Area Source Boiler Rule has not been issued, and thus the No Action Assurance continues to remain in effect. Nothing that EPA has learned since the issuance of the original No Action Assurance letter has led EPA to question its original concerns about the feasibility of all sources timely completing an initial tune-up. Sources that did not complete a tune-up cannot now certify that they conducted one…

In addition…the pending reconsideration continues to create uncertainty in the regulated community. Thus, this letter also amends the expiration date of the March 13, 2012, No Action Assurance…The conditions of the earlier March 13, 2012, No Action Assurance are otherwise unaffected.”

The conditions to which EPA refers are included in the original NAA and are necessary in order for EPA to exercise its enforcement discretion. Please go to EPA’s hyperlink at EPA Memo Extending No Action Assurance for the specific requirements and for more details on this action. EPA’s memo includes the original NAA as an attachment.

At this time, the DNR has not adopted the Area Source Boiler Rule. Following EPA’s completion of its reconsideration rule, the DNR plans to seek input on adopting these regulations.

For general questions, please contact Diane Brockshus (Email: or phone: 515-281-4801) or Christine Paulson (Email: or phone: 515-242-5154).

This list serve article is intended for consultants, industries, environmental groups, general public, and other entities regulated under the Clean Air Act. It was written by the DNR Air Quality Bureau to share regulatory news, program updates and technical guidance.