On September 14, 2016, the Environmental Protection Agency (“EPA”) finalized its reconsideration of a 2011 regulation that affects boilers at a broad array of facilities (“Area Source Boiler Reconsideration”). 81 Fed. Reg. 63,112. That rule, known as the “Area Source Boiler Rule,” established emission limits and other requirements for controlling hazardous air pollutants (“HAP”) from new and existing industrial, commercial, and institutional boilers located at area sources of HAP. “Area sources” are facilities with relatively low HAP emissions and, as such, the Area Source Boiler Rule applies to nearly 100,000 facilities, such as schools and universities, hospitals, municipal buildings, and small manufacturing facilities that were never subject to earlier regulations affecting boilers at facilities with materially higher HAP emissions, known as “major sources.”

After EPA issued the Area Source Boiler Rule in March 2011, the Agency promulgated an amended version of the regulation in February 2013 (“Area Source Boiler Amendments”). In response to that action, EPA received several administrative petitions requesting that EPA reconsider certain aspects of the Area Source Boiler Amendments. In January 2015, EPA granted reconsideration and requested public comment with respect to five issues raised in the petitions: (1) definitions of startup and shutdown; (2) alternative particulate matter (“PM”) standard for new oil-fired boilers that combust low-sulfur oil; (3) establishment of a subcategory and separate requirements for limited-use boilers; (4) provision that eliminates further performance testing for PM for certain boilers based on their initial compliance test; and (5) provision that eliminates further fuel sampling for mercury (“Hg”) for certain coal-fired boilers based on their initial compliance demonstration (collectively, “Proposed Reconsideration”).

In the September 2016 Area Source Boiler Reconsideration, EPA finalized its reconsideration of these five issues. Specifically:

  • EPA is retaining the subcategory and separate requirements for limited-use boilers, consistent with the Area Source Boiler Amendments;
  • EPA is establishing an alternative PM standard for new oil-fired boilers that combust ultra-low-sulfur liquid fuel in lieu of the alternative PM standard for new oil-fired boilers that combust low-sulfur oil;
  • EPA is incorporating a provision that requires further performance testing for PM every 5 years for certain boilers based on their initial compliance test in lieu of the provision eliminating further performance testing for such boilers;
  • EPA is incorporating a provision that requires further fuel sampling for Hg every 12 months for certain coal-fired boilers based on their initial compliance demonstration in lieu of the provision eliminating further fuel sampling for Hg for such boilers;
  • EPA is making minor changes to the revised definitions of startup and shutdown in the Proposed Reconsideration.

The Area Source Boiler Reconsideration also includes certain technical corrections and clarifications intended to clarify and improve the implementation of the Area Source Boiler Amendments. Importantly, however, none of these changes affect the applicability of the Area Source Boiler Rule. Finally, EPA is formally denying, through the Area Source Boiler Reconsideration, the requests for reconsideration with respect to the issues raised in the 2015 petitions for which reconsideration was not granted.