DEPARTMENT OF energy and ENVIRONMENT
NOTICE OF PROPOSED RULEMAKING
Chapters 1 and 2 of the Air Quality Regulations
The Director of the Department of Energy and Environment (DOEE or Department), pursuant to the authority set forth in Sections 5 and 6 of the District of Columbia Air Pollution Control Act of 1984 (the “Act”), effective March 15, 1985 (D.C. Law 5-165; D.C. Official Code §§ 8-101.01 et seq. (2013 Repl. & 2016 Supp.)); Section 107(4) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.07(4) (2013 Repl.)); and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of the intent to amend Chapters 1 (Air Quality - General Rules) and 2 (Air Quality - General and Non-Attainment Area Permits), to Title 20 (Environment) of the District of Columbia Municipal Regulations (DCMR).
The Department is proposing amendments to Chapter 1 of the air quality regulations in order to clarify its general authorities to protect air quality in the District. The Act provided the Mayor with general authority to regulate air quality in the District but had undergone few revisions in the 30 years since its enactment. On June 26, 2013, the D.C. Council introduced amendments to the Act that would clarify the Mayor’s regulatory and enforcement authorities. The Air Quality Amendment Act of 2013 (D.C. Law 20-135; 61 DCR 6767 (July 3, 2014)) became effective on September 9, 2014. The Department is updating the general requirements in Chapter 1 of the air quality regulations in order to reflect these changes, particularly with respect to the right of entry and inspection, penalties and injunctive relief, cease and desist orders, and the hearing rights of aggrieved parties. The Department is also revising the definitions in Section 199, by deleting obsolete definitions and updating cross-references. Finally, it is amending Section 202 of Chapter 2 in order to clarify the process for denying, revoking, suspending, or amending an air quality permit.
The Department is also taking this opportunity to amend Subsection 107.3 of the air quality regulations in order to comply with federal requirements. On May 22, 2015, the federal Environmental Protection Agency (EPA) issued a Final Rulemaking, finding that this section grants the Department discretion to create a unilateral exemption to emission limitations and therefore is a “substantial inadequacy” in the District’s State Implementation Plan (SIP). State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction, 80 Fed. Reg. 33840, 33961 (June 12, 2015). The Department is correcting the substantial inadequacy in its regulations by specifying the criteria under which the Department may grant this exemption. The Department is also clarifying the procedures for removing a control device or practice.
Once finalized, the Department plans to submit this entire rulemaking as an amendment to the District’s SIP.
Chapter 1, AIR QUALITY – GENERAL RULES, of Title 20 DCMR, Environment, is amended to read as follows:
Section 100, Purpose, Scope, and Construction, is amended to read as follows:
100 PURPOSE, SCOPE, AND CONSTRUCTION
100.1 The purpose of the air quality regulations is to prevent or minimize emissions into the atmosphere and thereby protect and enhance the quality of the District's air resources so as to protect the public health and welfare, promote the productive capacity of the people of the District of Columbia, and protect and restore the natural environment of the District of Columbia.
100.2 The air quality regulations shall apply to all operations in the District as authorized by the District of Columbia Air Pollution Control Act of 1984 (D.C. Law 5-165), as amended, as well as federal operations to the full extent permitted by the Clean Air Act (42 U.S.C. §§ 7401 et seq.), as amended, and regulations promulgated thereunder.
100.3 All regulations and parts of regulations in effect in the District that are inconsistent with the provisions of the air quality regulations are superseded with respect to matters covered by the air quality regulations, unless specifically stated otherwise.
100.5 Reference in the air quality regulations to a specific introductory section or subsection (such as § 204 or § 204.1) is intended to include a reference to all subdivisions of the specific section or subsection (such as §§ 204.1, 204.2, 204.1(a), and 204.1(a)(1)).
100.6 If any provision of the air quality regulations or the application thereof to any person or circumstance, is held invalid by a court of competent jurisdiction, the validity of the remainder of the air quality regulations shall not be affected.
Section 101, inspection, is repealed and replaced with the following:
101 CONFIDENTIALITY OF REPORTS
101.1 Any records, reports, information, or particulars thereof, other than emissions data, that relates to production, sales figures, or processes of any owner or operator, shall not be disclosed publicly upon a showing satisfactory to the Department that to publicly disclose will result in a significant and adverse effect upon the competitive position of the owner or operator, as provided in section 204 of the D.C. Freedom of Information Act (D.C. Official Code § 2-534) and section 114 of the Clean Air Act (42 U.S.C. §7414) except as may be necessary to protect the public health, safety, or well-being, following an opportunity for a hearing pursuant to § 107 of this title.
101.2 Subsection 101.1 of this title shall not be construed to prevent the use of the records, reports, or information by the Department in compiling or publishing analyses or summaries relating to the general condition of the outdoor atmosphere; provided, that the analyses or summaries do not reveal any information otherwise confidential under the provisions of this section.
101.3 Subsection 101.1 of this title shall not be construed to prevent such record, report, or information from being disclosed to other officers, employees, or authorized representatives of the District of Columbia or the United States concerned with carrying out this Act or the Clean Air Act, or when relevant in any proceeding under this Act or the Clean Air Act.
Section 102, orders for compliance, is repealed and replaced with the following:
102 CONTROL DEVICES OR PRACTICES
102.1 The devices or practices provided for the control of air pollutants discharged from stationary sources, or for otherwise complying with the air quality laws and regulations, shall remain operative or effective whenever the stationary source being controlled is operative or capable of producing emissions, except as otherwise provided in this section, and shall not be removed prior to the owner or operator requesting, and receiving, either written approval from the Department or an amendment to the source’s operating permit issued pursuant to Chapter 2 of this title, as provided in §§ 102.4 and 102.6 of this title.
102.2 Whenever it is necessary to shut down air pollution control equipment due to malfunction or for periodic maintenance, the owner or operator of the equipment shall report the planned shutdown to the Department within one (1) business day of a shutdown due to malfunction, or at least forty-eight (48) hours prior to a shutdown for maintenance.
102.3 The notice required by § 102.2 of this title shall include, but is not limited to, the following:
(a) Identification of the specific facility whose pollution control equipment is to be taken out of service, as well as its location and permit number;
(b) The expected length of time that the air pollution control equipment will be out of service;
(c) The nature and quantity of emissions of air pollutants likely to occur during the shutdown period;
(d) Measures that will be taken to minimize the length of the shutdown period; and
(e) The reasons that it would be impossible or impractical to shut down the source operation during the maintenance or repair period.
102.4 The Department may, by written notice to the owner or operator, permit the continued operation of the source for the time period proposed, or for the lesser time as the Department finds reasonable, provided that:
(a) The owner or operator of the equipment provides the notice required in §§ 102.2 and 102.3 of this title;
(b) The Department determines that measures have been taken to minimize the length of the shutdown period;
(c) The Department determines that it would be impossible or impractical to shut down the source operation during the maintenance or repair period; and
(d) The Department determines that operation of the source will not result in the violation of any federally enforceable emissions limitation or requirement.
102.5 If the Department does not permit continued operation of the source pursuant to § 102.4 of this title, it may order the owner or operator to discontinue operation of the stationary source until the maintenance is completed, or the malfunctioning equipment is repaired.
102.6 The Department may, by written notice to the owner or operator, allow the removal of a control device or practice pursuant to § 102.1 provided that:
(a) The owner or operator submits a written request for removal of the control device or practice at least ninety (90) days prior to the proposed date of removal;
(b) The Department determines that it would be impossible or highly impractical to maintain the control device or practice;
(c) The Department determines that operation of the stationary source without the control device or practice will not result in the violation of any federally enforceable emissions limitation or regulatory requirement; and
(d) If the control device or practice is required by a permit issued pursuant to Chapters 2 or 3 of the air quality regulations, the owner or operator shall submit an application for an amendment to the permit at the same time or prior to the written request specified under paragraph (a).
102.7 Any article, machine, equipment, device, or other contrivance that conceals an emission from any source shall not be installed or used.
Section 103, VARIANCE, is amended to read as follows:
103 VARIANCES
103.1 Each person required to perform an act by the air quality regulations may be excused by the Department from the performance of the act, either in whole or in part, upon a finding by the Department that the full performance of the act would result in exceptional or undue hardship by reason of excessive structural or mechanical difficulty, or the impracticability of bringing the activity into full compliance with the requirements of the air quality regulations.
103.2 A variance may be granted only to the extent that it is necessary to ameliorate an exceptional or undue hardship, and only when compensating factors are present that give adequate protection to the public health or welfare and assure that the intent and purpose of the air quality regulations are not impaired.
103.3 No variance may be granted to excuse performance required by any federal mandate.
103.4 A person requesting a variance shall submit a written request for the variance, together with the supporting data and analyses that may be required by the Department.
103.5 The request for a variance shall be filed with the Department and shall include the following:
(a) The requirement(s) of the air quality regulations from which the person seeks the variance;
(b) A description of the exceptional or undue hardship that would result from compliance with the requirement; and
(c) A description of the act that the person wishes to perform in lieu of the regulatory requirement.
103.6 Except as explicitly provided in the air quality regulations, a variance is granted for the operation of diesel locomotives on common carrier railroads in the District in accordance with the Clean Air Act.
103.7 A variance may be granted for experimental and research activities; provided, that the requirements of §§ 103.1 through 103.5 are otherwise met.
103.8 All requests for variances shall be published in the District of Columbia Register, at least thirty (30) days before the Department rules on the request, in accordance with the following requirements:
(a) The published notice shall briefly set forth the information contained in the applicant’s written request; and
(b) Any person may submit comments on the request within thirty (30) days of the published notice.
103.9 An applicant must submit the fee specified in § 211 of this title, sufficient to cover the reasonable costs of reviewing and acting upon the application and the reasonable costs of implementing and enforcing the terms and conditions of the variance approval.
103.10 The Department shall maintain a written record of all variances granted and denied. The record shall include all bases for the grant or denial, and shall be available for public inspection.
103.11 Each variance may be granted for up to five (5) years, but not to exceed the time necessary to avoid the undue hardship, and may be renewed in accordance with the following:
(a) A renewal may be granted only if the Department finds that the intent and purpose of the air quality regulations are not impaired;
(b) A renewal may be granted only upon application, which shall be made at least ninety (90) days prior to the expiration of the variance; and
(c) All of the requirements of this section shall apply in cases of renewal.
103.12 Nothing in this section shall be construed to permit any operation in violation of the air quality regulations during the pendency of a request for a variance.
103.13 Nothing in this section, and no variance or renewal granted pursuant to this section, shall be construed to prevent or limit the application of the emergency provisions and procedures of § 401 of this title to any person or his or her property.
Section 104, hearings, is repealed and replaced with the following:
104 entry and inspection
104.1 Upon the presentation of appropriate credentials to the owner, agent in charge, or tenant, the Department shall have the right, subject to § 104.3 of this section, to enter a premise or inspect an activity reasonably believed to be subject to the air quality regulations to determine compliance with the requirements of the air quality regulations. The right of entry shall be for the following purposes:
(a) Inspection, including the right to inspect and copy records related to compliance with the air quality regulations;
(b) Observation;
(c) Measurement;
(d) Sampling;
(e) Testing; and
(f) Evidence collection.
104.2 The Department may:
(a) Investigate and take testimony under oath regarding any report of noncompliance with a federal or District law or regulation applicable to air pollution control; and
(b) In addition to the requirements of Chapter 5 of Title 20 of the DCMR, require a person or entity subject to the air quality regulations, or who the Department reasonably believes may have information necessary to carry out the purposes of the air quality regulations, on a one-time, periodic, or continuous basis to:
(1) Establish, maintain, and submit records and reports;
(2) Install, use, and maintain monitoring equipment, and use audit procedures or methods;
(3) Take samples in accordance with such procedures or methods, at such locations, at such intervals, during such periods, and in such manner as the Department shall prescribe;
(4) Keep records on control equipment parameters, production variables, or other indirect data as appropriate;
(5) Submit compliance certifications; and
(6) Provide other information as the Department may require.
104.3 If the Department is denied access to enter or inspect the premises in accordance with this section, the Department may apply to the Superior Court of the District of Columbia or the Office of Administrative Hearings pursuant to § 12(b)(12) of the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76; D.C. Official Code § 2-1831.09(b)(12)) for a search warrant.
Section 105, penalty, is amended to read as follows:
105 PENALTIES, COST RECOVERY, AND INJUNCTIVE RELIEF
105.1 In the event of any violation of, or failure to comply with, the air quality laws or regulations, every day of the violation or failure shall constitute a separate offense, and the penalties described in this section shall be applicable to each separate offense.
105.2 A person who violates the air quality laws or regulations is civilly liable and shall be subject to fines not more than thirty seven thousand five hundred dollars ($37,500) per violation per day.
105.3 A person who knowingly or willfully violates the air quality laws or regulations is guilty of a criminal misdemeanor and, upon conviction, shall be subject to a fine not to exceed twenty five thousand dollars ($25,000), imprisonment not to exceed one (1) year, or both.
105.4 A person who knowingly makes a false statement in an application, record, report, plan, or other document submitted or maintained under this act shall be guilty of a misdemeanor and subject to a fine not to exceed ten thousand dollars ($10,000), imprisonment not to exceed six (6) months, or both.
105.5 In the alternative to civil fines, the Department may impose an administrative fine, penalty, or cost pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985, as amended (D.C. Law 6-42; D.C. Official Code §§ 2-1801 et seq.) and its implementing regulations.
105.6 In addition to or in lieu of the civil, criminal, and administrative penalties in this section, the Attorney General for the District of Columbia may commence appropriate civil action in the Superior Court of the District of Columbia or any other court of competent jurisdiction for damages, cost recovery, and injunctive or other appropriate relief to enforce compliance with the air quality laws and regulations.
Section 106, confidentiality of reports, is repealed and replaced with the following:
106 ENFORCEMENT
106.1 The Department may enforce a violation of the air quality laws or regulations by issuing one or more of the following:
(a) Administrative order, notice of violation, or cease and desist order;
(b) Notice of infraction;
(c) Civil or criminal judicial enforcement action;
(d) Notice of modification, suspension, revocation, or denial of a permit in accordance with 20 DCMR §§ 202 and 303; or
(e) Any other order or compliance document necessary to protect human health or the environment, or to implement or enforce the air quality laws and regulations.
106.2 Each notice shall identify the violation and, if applicable:
(a) In the case of a notice of infraction, include an assessment of a fine for each violation being cited; and
(b) In the case of a notice of infraction or notice of permit modification, suspension, revocation, or denial, state the procedure for requesting a hearing to appeal the notice.
106.3 If the Department determines that a hazardous condition exists that may endanger the public health or safety of the citizens or environment within the District of Columbia due to noncompliance with federal or District air quality laws or regulations, the Department may issue a cease and desist order, which requires a violator to cease operations and implement corrective actions immediately to contain the hazardous condition. The order shall:
(a) Describe the nature of the violation;
(b) Take effect at the time and on the date signed;
(c) Identify the corrective actions to be taken or actions that must be immediately suspended; and
(d) State the procedure for requesting a hearing to appeal the order.
106.4 If the Department determines that there has been a violation of federal or District air quality laws or regulations, the Department may issue an administrative order, which requires a violator to take action to come into compliance. The order shall:
(a) Describe the nature of the violation;
(b) Take effect at the time and on the date signed;
(c) Identify the corrective actions to be taken or actions that must be immediately suspended; and
(d) State the procedure for requesting a hearing to appeal the order.
Section 107, control devices or practices, is repealed and replaced with the following:
107 Appeals
107.1 Any person adversely affected by an action of the Department taken or proposed to be taken pursuant to the Act or air quality regulations may request a hearing within fifteen (15) calendar days of service, or twenty (20) calendar days if service is made by United States mail. If specific instructions are not on the notice or order, the person shall file a written request for a hearing, including the grounds for the objection, in accordance with the Office of Administrative Hearings: Rules of Practice and Procedure in Chapter 28 of Title 1 DCMR.
107.2 An appeal request does not stay the effective date of an administrative order or cease and desist order issued pursuant to § 106 of this title. If a hearing is not requested within the fifteen (15) day time period, or twenty (20) calendar days if service is made by United States mail, the order becomes final and remains in effect until the Department determines that the corrective actions have alleviated the violations and the dangerous conditions, if applicable.
107.3 The Department may take any adverse action proposed or contemplated without a hearing if the aggrieved person fails to timely request a hearing, or the party fails to appear at a scheduled hearing for which no continuance has been granted.
Section 199, DEFINITIONS AND ABBREVIATIONS, is amended as follows:
199 DEFINITIONS AND ABBREVIATIONS
199.1 When used in the air quality regulations, Chapters 1 through 20 of Title 20 DCMR, the following terms shall have the meaning ascribed:
By adding a definition for “Act” to read as follows:
Act – except as used in Chapter 3 of Title 20, the District of Columbia Air Pollution Control Act of 1984, effective March 15, 1985 (D.C. Law 5-165) as amended, (D.C. Official Code §§ 8-101.01 et seq.).
By deleting the definition of “affected facility.”
By amending the definition of “air pollution” to read as follows:
Air pollution – the presence in the outdoor atmosphere of one or more air pollutants in sufficient quantities and of characteristics and duration as are likely to be injurious to public welfare, to the health of humans, to plant or animal life, or to property, or which interferes with the reasonable enjoyment of life and property.
By adding a definition of “air quality regulations” to read as follows:
Air quality regulations – unless otherwise specified, regulations issued pursuant to the District of Columbia Air Pollution Control Act of 1984, effective March 15, 1985 (D.C. Law 5-165) as amended, (D.C. Official Code §§ 8-101.01 et seq.).
By amending the definition of “annual process rate” to read as follows:
Annual process rate – the actual or estimated annual fuel, process, or solid waste operating rate.
By amending the definition of “begin actual construction” to read as follows:
Begin actual construction – the initiation of physical on-site construction activities on an emissions unit that are of a permanent nature. These activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities that mark the initiation of the change.
By amending the definition of “blending plant” to read as follows:
Blending plant – any refinery or other facility at which oxygenated gasoline is produced through the addition of oxygenates, and at which the quality or quantity of the gasoline is not altered in any other manner.
By amending the definition of “building, structure, facility, or installation” to read as follows:
Building, structure, facility, or installation – all of the pollutant emitting activities that belong to the same industrial grouping, are located on one (1) or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same “Major Group” (i.e., which have the same first two (2) digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively).
By amending the definition of “certifying individual” to read as follows:
Certifying individual – the individual responsible for the completion and certification of the emission statement and who will take legal responsibility for the emission statement's accuracy.
By amending the definition of “Clean Air Act” to read as follows:
Clean Air Act – the federal Clean Air Act, enacted December 31, 1970 (Public Law 91-604), as amended (42 U.S.C. §7401 et seq.).
By amending the definition of “commence” to read as follows:
Commence – as applied to construction of a major stationary source or major modification - that the owner or operator has obtained all necessary preconstruction approvals or permits and either has:
(a) Begun, or caused to begin, a continuous program of physical on-site construction of a source to be completed within a reasonable time; or
(b) Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.
By amending the definition of “complete” to read as follows:
Complete – in reference to an application for a permit, that the application contains all of the information necessary for processing the application, as determined by the Department.
By amending the definition of “component” to read as follows:
Component – any piece of equipment that has the potential to leak volatile organic compounds and that is tested in the manner described in § 702 of the air quality regulations. These sources include, but are not limited to, pumping seals, compressor seals, seal oil degassing vents, pipeline valves, flanges and other connections, pressure relief devices, process drains, and open ended pipes. Excluded from these sources are valves which are not externally regulated.
By amending the definition of “condensate” to read as follows:
Condensate – hydrocarbon liquid separated from natural gas that condenses due to changes in the temperature or pressure and remains liquid at standard conditions.
By amending the definition of “control device” to read as follows:
Control device – any device that has as its primary function the control of emissions from fuel burning, refuse burning, or from a process, and thus reduces the creation of, or the emission of, air pollutants into the atmosphere, or both.
By amending the definition of “control efficiency” to read as follows:
Control efficiency – the actual total control efficiency achieved by the control device(s).
By amending the definition of “control equipment identification code” to read as follows:
Control equipment identification code – the tracking code established by the U.S. Environmental Protection Agency that defines the equipment used to reduce, by destruction or removal, the amount of air pollutant(s) in an air stream prior to discharge to the ambient air.
By amending the definition of “crude oil” to read as follows:
Crude oil – a naturally occurring mixture that consists of hydrocarbons and sulfur, nitrogen, and oxygen derivatives of hydrocarbons and that is liquid at standard conditions.
By amending the definition of “cutback asphalt” to read as follows:
Cutback asphalt – any asphalt cement that has been liquified by blending with a volatile organic compound(s).
By amending the definition of “Department” to read as follows:
Department – the Department of Energy and Environment (DOEE).
By amending the definition of “Director” to read as follows:
Director – the Director of the Department of Energy and Environment or the Director's duly authorized representative.
By amending the definition of “dispersion technique” to read as follows:
Dispersion technique – includes any intermittent or supplemental control of air pollutants varying with atmospheric conditions, or so much of the stack height of any source that exceeds the greater of sixty-five (65) meters (213 feet) or Hg = H + 1.5L, where Hg + maximum stack height determined from consideration of all nearby structures, measured from the ground-level elevation at the base of the stack, H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack, L = lesser dimension (height or projected width) of nearby structure(s), or so much of the stack height of any source that exceeds the height determined by a demonstration performed to the satisfaction of the Department. In determining whether a demonstration is performed satisfactorily, the Department shall take into consideration, among other factors, the methods, documents, and practices used in performing the demonstration.
By amending the definition of “Distributor” to read as follows:
Distributor – any person or party who supplies gasoline for delivery to a retail outlet.
By amending the definition of “emission factor” to read as follows:
Emission factor – an estimate of the rate at which a pollutant is released to the atmosphere as the result of some activity divided by the rate of that activity.
By amending the definition of “emission statement” to read as follows:
Emission statement – annual report of actual emissions of oxides of nitrogen and volatile organic compounds required of each owner or operator of stationary sources pursuant to the requirements of §182(a)(3)(B) of the federal Clean Air Act.
By amending the definition of “emissions unit” to read as follows:
Emissions unit – any part of a stationary source that emits or would have the potential to emit any pollutant subject to regulation under the federal Clean Air Act or under the air quality regulations.
By amending the definition of “estimated emissions method code” to read as follows:
Estimated emissions method code – a one-position tracking code established by the U.S. Environmental Protection Agency that identifies the estimation technique used in the calculation of estimated emissions.
By amending the definition of “excessive concentrations” to read as follows:
Excessive concentrations – for the purpose of determining good engineering practice stack height in a demonstration, a maximum concentration due to downwash, wakes, or eddies produced by structures or terrain features that the Department determines would result in adverse health effect(s) beyond those that would be experienced in the absence of the downwash, wake, or eddies. In determining the adverse health effect(s) resulting from downwash, wakes, or eddies, the Department shall take into consideration, among other factors, the following:
(a) The nature and concentration of the pollutant(s);
(b) The applicable National Ambient Air Quality Standard(s);
(c) Any other appropriate air quality standard(s); and
(d) The possible duration of exposure to the pollutant(s).
By amending the definition of “existing source” to read as follows:
Existing source – equipment, machines, devices, articles, contrivances, or installations that are under construction or in operation on February 1, 1985, except that any existing equipment, machine, device, article, contrivance, or installation that is altered, replaced, or rebuilt after February 1, 1985, shall be defined as a new source.
By amending the definition of “external floating roof” to read as follows:
External floating roof – a storage vessel cover in an open top tank consisting of a double deck or pontoon single deck that rests upon and is supported by the petroleum liquid being contained and is equipped with a closure seal or seals to close the space between the roof edge and tank wall.
By amending the definition of “federally enforceable” to read as follows:
Federally enforceable – all limitations and conditions that are enforceable by the Administrator, including those requirements developed pursuant to 40 C.F.R. parts 60, 61, and 63 requirements within any applicable state implementation plan, any permit requirements established pursuant to 40 C.F.R. § 52.21 or under regulations approved pursuant to 40 C.F.R. part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the state implementation plan and expressly requires adherence to any permit issued under such program, or any permit requirements not designated as “state only” in a federal operating permit, a permit issued pursuant to Chapter 3 of this title, or a permit issued pursuant to 40 C.F.R. parts 70 and 71.
By amending the definition of “fossil fuel-fired steam-generating unit” to read as follows:
Fossil fuel-fired steam-generating unit – a furnace or boiler, or combination of furnaces or boilers connected to a common stack, used in the process of burning fossil fuel for the primary purpose of producing steam by heat transfer.
By amending the definition of “fugitive emissions” to read as follows:
Fugitive emissions – those emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.
By amending the definition of “gas service” to read as follows:
Gas service – equipment that processes, transfers, or contains a volatile organic compound or mixture of volatile compounds in the gaseous phase.
By amending the definition of “incinerator” to read as follows:
Incinerator – any furnace used in the process of burning solid waste or sludge for the primary purpose of reducing the volume of the waste or sludge by removing combustible matter.
By amending the definition of “independent small business marketer of gasoline” to read as follows:
Independent small business marketer of gasoline – any person engaged in the marketing of gasoline who would be required to pay for procurement and installation of vapor recovery equipment under § 324 of the federal Clean Air Act or regulations promulgated thereunder, unless such person:
(a) Is a refiner;
(b) Controls, is controlled by, or is under common control with a refiner;
(c) Is otherwise directly affiliated with a refiner or with a person who controls, is controlled by, or is under common control with a refiner; or
(d) Receives less than fifty percent (50%) of his or her annual income from the refining or marketing of gasoline. For purposes of the definition of independent small business marketer of gasoline, the term "refiner" shall not include any refiner whose total refinery capacity (including the refinery capacity of any person who controls, is controlled by, or is under common control with such refiner) does not exceed sixty five thousand (65,000) barrels per day, and the terms "controls," "controlled by," or "common control" mean ownership of more than fifty percent (50%) of the refiner's common stock.
By deleting the definition of “lead-based paint activity.”
By amending the definition of “leaking component” to read as follows:
Leaking component – a component that has a volatile organic compound concentration exceeding ten thousand (10,000) parts per million when tested in the manner described in Appendix B, EPA Guideline Series, EPA-450/2-78-036, OAQPS No. 1.2-111, June 1978.
By amending the definition of “loading facility” to read as follows:
Loading facility – any aggregation or combination of gasoline loading equipment that is both possessed by one (1) person, and located so that all the gasoline loading outlets for the aggregation or combination of loading equipment can be encompassed within any circle of three hundred feet (300 ft.) in diameter.
By amending the definition of “lowest achievable emission rate (LAER)” to read as follows:
Lowest achievable emission rate (LAER) – for any source, the more stringent rate of emissions based on the following:
(a) The most stringent emissions limitation that is contained in the implementation plan of any State for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or
(b) The most stringent emissions limitation that is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within or stationary source. In no event shall the application of the term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.
By amending the definition of “major stationary source” to read as follows:
Major stationary source – any stationary source of air pollutants that emits, or has the potential to emit, one hundred tons per year (100 Tpy) or more of any pollutant regulated under the Clean Air Act, except that lower emissions thresholds shall apply as follows:
(a) Seventy (70) Tpy or more of PM10 or, where applicable, seventy (70) Tpy of a specific PM10 precursor, in any nonattainment area for PM10;
(b) Fifty (50) Tpy or more of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as determined under rules issued by the EPA Administrator);
(c) Twenty-five (25) Tpy or more of nitrogen oxides or volatile organic compounds in any nonattainment area for ozone, except where paragraph (d) below is applicable;
(d) Ten (10) Tpy or more of nitrogen oxides or volatile organic compounds in any extreme nonattainment area for ozone;
(e) Any physical change that would occur at a stationary source not qualifying under paragraphs (a) - (d) above, is a major stationary source if the change would constitute a major stationary source by itself;
(f) A major stationary source that is major for volatile organic compounds or oxides of nitrogen shall be considered major for ozone; and
(g) The fugitive emissions of a stationary source shall not be included in determining major stationary source status, unless the source belongs to one (1) of the following categories of stationary sources:
(1) Coal cleaning plants (with thermal dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of charging more than two hundred fifty tons (250 T) of refuse per day;
(9) Hydrofluoric, sulfuric, or nitric acid plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process);
(16) Primary lead smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants;
(21) Fossil-fuel boilers (or combination thereof) totaling more than two hundred fifty million British thermal units (250,000,000 Btus) per hour heat input;
(22) Petroleum storage and transfer units with a total storage capacity exceeding three hundred thousand (300,000) barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants of more than two hundred fifty million British thermal units (250,000,000 Btus) per hour heat input; and
(27) Any other stationary source category which, as of August 7, 1980, is being regulated under §§ 111 or 112 of the Clean Air Act.
By amending the definition of “modification” to read as follows:
Modification – other than as used in § 205 of the air quality regulations, any physical change in, or change in the method of operation of, a stationary source that increases or decreases the amount of any air pollutant emitted by the source, or that results in the emission of any air pollutant not previously emitted, except that the term shall not include the following:
(a) Routine maintenance, repair, or replacement;
(b) An increase in the hours of operation or in the production rate, unless the change would be prohibited under any federally enforceable permit condition established pursuant to § 204 of this title;
(c) Use of an alternative fuel or raw material if, prior to March 15, 1985, the affected facility was designed to accommodate the alternative use; and
(d) Decommissioning or removal.
By amending the definition of “multiple chamber incinerator” to read as follows:
Multiple chamber incinerator –
(a) Any incinerator consisting of three (3) or more refractory-lined combustion chambers in series, physically separated by refractory walls, interconnected by gas passage ports or ducts, and employing adequate design parameters necessary for maximum combustion of the material to be burned. The combustion chamber shall include as a minimum, one chamber principally for ignition, one chamber principally for mixing, and one chamber for combustion; and
(b) Any incinerator consisting of less than three (3) refractory-lined combustion chambers in series that is connected to an afterburner approved by the Director and employing adequate design parameters necessary for maximum combustion of the material to be burned.
By amending the definition of “nearby” to read as follows:
Nearby – as used in the definition of "dispersion technique," that distance up to five (5) times the lesser of the height or the projected width of a structure but not greater than eight tenths (0.8) kilometer (five tenths (0.5) mile). The height of the structure is measured from the ground-level elevation at the base of the stack. "Nearby" as applied to terrain features, means up to the distance that a terrain feature has an adverse influence on stack effluent or eight tenths (0.8) kilometer (five tenths (0.5) mile), whichever is less; except, that if it is shown to the satisfaction of the Department that the eight tenths (0.8) kilometer (five tenths (0.5) mile) restriction is unreasonable, a new cutoff distance may be used. In the determination of the unreasonableness of the eight tenths (0.8) kilometer (five tenths (0.5) mile) cutoff for demonstrations, the Department shall take into consideration, among other factors, the extent and shape of the terrain feature(s) and the frequency of occurrence of meteorological conditions leading to excessive concentrations caused by downwash, wakes, or eddies.
By amending the definition of “necessary preconstruction approvals or permits” to read as follows:
Necessary preconstruction approvals or permits – those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations that are part of the State Implementation Plan for the District of Columbia.
By amending the definition of “new source” to read as follows:
New source – equipment, machines, devices, articles, contrivances, or installations built or installed on or after the effective date of the District of Columbia Air Pollution Control Act of 1984, or existing at that time that are later altered, repaired, or rebuilt. Any equipment, machines, devices, articles, contrivances, or installations moved to a new address, or operated by a new owner, or new lessee, after the effective date of the District of Columbia Air Pollution Control Act of 1984, shall be considered a new source.
By amending the definition of “non-oxygenated gasoline” to read as follows:
Non-oxygenated gasoline – any gasoline having an oxygen content of less than two percent (2%) by volume or four tenths of a percent (0.4%) by weight.
By amending the definition of “odor” to read as follows:
Odor – that property of an air pollutant that affects the sense of smell.
By amending the definition of “organic solvents” to read as follows:
Organic solvents – volatile organic compounds that are liquids at standard conditions, and that are used as dissolvers, viscosity reducers, or cleaning agents.
By amending the definition of “oxides of nitrogen” to read as follows:
Oxides of nitrogen – in air pollution usage, this comprises nitric oxide and nitrogen dioxide, expressed as the molecular weight of nitrogen dioxide.
By amending the definition of “oxygenate” to read as follows:
Oxygenate – any oxygen-containing compound approved for use in gasoline by the U.S. Environmental Protection Agency, including oxygen-containing compounds that comply with the U.S. Environmental Protection Agency’s “substantially similar” definition under § 211(f)(1) of the federal Clean Air Act, or that have received a waiver from the U.S. Environmental Protection Agency under § 211(f)(4) of the federal Clean Air Act.
By amending the definition of “oxygenated gasoline” to read as follows:
Oxygenated gasoline – gasoline that contains one or more oxygenates.
By amending the definition of “oxygenated gasoline control area” to read as follows:
Oxygenated gasoline control area – the District of Columbia portion of the Washington, D.C. - Maryland - Virginia Metropolitan Statistical Area.
By amending the definition of “oxygenated gasoline control period” to read as follows:
Oxygenated gasoline control period – the four (4) month period that begins on November 1st of each year and continues through the last day of February of the following year.
By adding a definition of “ozone season” to read as follows:
Ozone season – the period from May 1 through September 30 of a year.
By amending the definition of “particulate matter” to read as follows:
Particulate matter – any finely divided material, with the exception of uncombined water that, under standard conditions, exists as a liquid or solid; except that when a test procedure for particulate matter, specified elsewhere in the air quality regulations, is applicable, particulate matter shall be defined by the specified test procedure.
By amending the definition of “peak ozone season” to read as follows:
Peak ozone season – the consecutive three (3) month period from June 1st through August 31st.
By amending the definition of “percentage annual throughput” to read as follows:
Percentage annual throughput – the weighted percent of yearly activity for the following consecutive three (3) month periods:
(a) December through February;
(b) March through May;
(c) June through August; and
(d) September through November.
By amending the definition of “person” to read as follows:
Person – includes individuals, firms, partnerships, companies, corporations, trusts, associations, organizations, and any other private or governmental entities, including federal and District government entities.
By amending the definition of “plant” to read as follows:
Plant – the total facilities available for production or service.
By amending the definition of “point” to read as follows:
Point – a physical emission point or process within a plant that results in pollutant emissions.
By amending the definition of “process” to read as follows:
Process – any action, operation, or treatment of materials, including handling and storage of the materials that may cause the discharge of an air pollutant or pollutants, into the atmosphere, excluding fuel burning and refuse burning.
By amending the definition of “process rate” to read as follows:
Process rate – quantity per unit time of any fuel burned, raw material or process intermediate consumed, or product generated through the use of any equipment, source operation, or process.
By amending the definition of “refiner” to read as follows:
Refiner – any person who owns, leases, operates, controls, or supervises a refinery.
By amending the definition of “refinery” to read as follows:
Refinery – any facility, including a blending plant that produces gasoline.
By amending the definition of “refinery unit” to read as follows:
Refinery unit – a set of components that are a part of a basic process operation such as distillation, hydrotreating, cracking, or reforming of hydrocarbons.
By amending the definition of “Reid Vapor Pressure” to read as follows:
Reid Vapor Pressure – the vapor pressure of a liquid at a temperature of 100 °F (37.8 °C), expressed in pounds force per square inch absolute or kilopascals, as determined by the Reid Method as described in the ASTM International Standard D 323, “Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method).”
By amending the definition of “retailer” to read as follows:
Retailer – any person who owns, leases, operates, controls, or supervises a retail outlet.
By amending the definition of “retail outlet” to read as follows:
Retail outlet – any establishment at which motor fuel is sold or offered for sale to the general public for use in motor vehicles.
By amending the definition of “secondary emissions” to read as follows:
Secondary emissions – emissions that occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. Secondary emissions must be specific, well defined, quantifiable, and impact the same general areas as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any offsite support facility that would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emission that come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.
By amending the definition of “segment” to read as follows:
Segment – components of an emissions point or process at the level that emissions are calculated.
By amending the definition of “solid waste” to read as follows:
Solid waste – a refuse, more than fifty percent (50%) of which is waste consisting of a mixture of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustibles, and noncombustible materials such as glass and rock.
By amending the definition of “source” to read as follows:
Source – any property, real or personal, that emits or may emit any air pollutant. For purposes of sources affecting non-attainment areas and permits for the sources under § 204 of the air quality regulations, the term includes both plants and each individual piece of process equipment.
By amending the definition of “standard conditions” to read as follows:
Standard conditions – a dry gas temperature of seventy degrees Fahrenheit (70° F.) and a gas pressure of fourteen and seven tenths (14.7) pounds per square inch absolute (psia).
By amending the definition of “oxygenated gasoline control area” to read as follows:
Standard industrial classification code – a series of codes devised by the U.S. Office of Management and Budget to classify establishments according to the type of economic activity in which they are engaged.
By amending the definition of “start-up” to read as follows:
Start-up – the setting in operation of a stationary or other source for any purpose; except that for fuel-burning equipment that generates steam, start-up shall mean a period from initial fire to the time steam can be delivered in usable form to steam-using equipment.
By amending the definition of “State Implementation Plan or SIP” to read as follows:
State Implementation Plan or SIP – a plan approved or promulgated under Sections 110 or 172 of the Clean Air Act, 42 U.S.C. §§ 7410 or 7502.
By amending the definition of “stationary source” to read as follows:
Stationary source – a building, structure, facility, installation, or group of buildings, structures, facilities, or installations that emits or may emit any air pollutant subject to regulation under the federal Clean Air Act or the air quality regulations.
By amending the definition of “submit or serve” to read as follows:
Submit – to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:
(a) In person;
(b) By United States Postal Service first-class mail with the official postmark or, if submittal is by the Director, by any other mail service of the United States Postal Service; or
(c) By other means with an equivalent time and date mark used in the course of business to indicate the date of dispatch or transmission and a record of prompt delivery. Compliance with any "submission", "service", or "mailing" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.
By amending the definition of “substrate” to read as follows:
Substrate – the base material that is coated or printed.
By amending the definition of “terminal” to read as follows:
Terminal – a gasoline storage and distribution facility with an average daily throughput greater than forty thousand (40,000) gallons of gasoline.
By amending the definition of “typical ozone season day” to read as follows:
Typical ozone season day – a day typical of that period of the year during the peak ozone season.
By amending the definition of “volatile organic compound (VOC)” to read as follows:
Volatile organic compound (VOC) – a volatile organic compound as that term is defined by the United States Environmental Protection Agency at 40 CFR § 51.100(s), as supplemented or amended, which is incorporated by reference herein. In addition to test methods specified elsewhere in this title, the most recent versions of SCAQMD Laboratory Method 313 and ASTM Method D6886 shall be considered appropriate methods for determining compliance with VOC emission limits.
By amending the definition of “wholesale purchaser-consumer” to read as follows:
Wholesale purchaser-consumer – any ultimate consumer of gasoline who purchases or obtains gasoline from a supplier for use in motor vehicles and receives delivery of that product into a storage tank, substantially under the control of that person, of at least five hundred fifty (550) gallon capacity.
199.2 When used in the air quality regulations, the following abbreviations shall have the meaning ascribed:
|
ASTM |
ASTM International |
|
BTU |
British thermal unit |
|
°C |
Degree Celsius |
|
cal. |
Calorie(s) |
|
cfm |
Cubic feet per minute |
|
CO |
Carbon Monoxide |
|
CFR |
Code of Federal Regulations |
|
COH3 |
Coefficient of haze |
|
CPI |
Consumer Price Index |
|
EPA |
United States Environmental Protection Agency |
|
°F |
Degree Fahrenheit |
|
ft |
Foot (Feet) |
|
g. |
Gram(s) |
|
GEP |
Good Engineering Practice |
|
Hg |
Mercury |
|
Hi-Vol |
High Volume Samplers |
|
H2O |
Water |
|
hr |
Hour(s) |
|
H2S |
Hydrogen Sulfide |
|
In. |
Inch |
|
In. H2O |
Inches of water |
|
LAER |
Lowest Achievable Emission Rate |
|
Lb |
Pound |
|
max. |
Maximum |
|
mm |
Millimeter |
|
mm Btu |
Million Btu |
|
mm HG |
Millimeters of mercury |
|
mol |
Mole |
|
MWe |
Megawatt electrical |
|
NESHAP |
National Emission Standard(s) for Hazardous Air Pollutants |
|
NOx |
Nitrogen Oxides, or Oxides of Nitrogen |
|
NO2 |
Nitrogen Dioxide |
|
No. |
Number |
|
NSPS |
New Source Performance Standard |
|
O2 |
Oxygen |
|
PM |
Particulate Matter |
|
PM10 |
Particulate Matter with an aerodynamic diameter less than 10 microns |
|
PM2.5 |
Particulate Matter with an aerodynamic diameter less than 2.5 microns |
|
ppm |
Parts Per Million |
|
ppmv |
Parts Per Million by Volume |
|
psia |
Pounds per Square Inch Absolute Pressure |
|
RACT |
Reasonably Available Control Technology |
|
SIC |
Standard Industrial Classification |
|
SIP |
State Implementation Plan |
|
SO2 |
Sulfur Dioxide |
|
ton |
Short ton unless otherwise specified |
|
ug/m3 |
Microgram(s) per cubic meter |
|
U.L. |
Underwriters Laboratories (www.ul.com) |
|
VOC |
Volatile Organic Compound |
|
[mu] m |
Micrometer-10 Meter |
Chapter 2, AIR QUALITY – GENERAL AND NON-ATTAINMENT AREA PERMITS, is amended as follows:
Section 202, MODIFICATION, REVOCATION AND TERMINATION OF PERMITS, is amended to read as follows:
202 amendment, SUSPENSION, REVOCATION, AND DENIAL OF PERMITS
202.1 After providing notice and opportunity for appeal pursuant to § 107 of the air quality regulations, the Department may amend, suspend, revoke, or deny the issuance or renewal of a permit issued pursuant to this chapter.
202.2 The Department may take action pursuant to § 202.1 of the air quality regulations if action is warranted by amendments to the District or federal air quality laws and regulations or if the applicant or permit holder:
(a) Has violated or failed to comply with any of the terms and conditions of the permit, District or federal air quality laws and regulations, or an Order of the Department;
(b) Has made a false statement or misrepresentation material to the issuance, modification, or renewal of a permit;
(c) Has submitted a false or fraudulent record, invoice, or report; or
(d) Has had a permit denied, revoked, or suspended in the District or by another state or jurisdiction.
202.3 Except in cases of willfulness or cases in which the public health or welfare requires otherwise, no permit shall be amended, suspended, or revoked unless, prior to the institution of proceedings, facts or conduct that may warrant action have been called to the attention of the permittee in writing, and the permittee has been given an opportunity to demonstrate or achieve compliance with all lawful requirements.
202.4 The Department may terminate or amend a permit upon the written request of the permittee.
202.5 A permit amendment shall be subject to notice and opportunity for public comment and hearing as required by § 210 of the air quality regulations, if the proposed amendment:
(a) Involves a significant change in existing monitoring permit terms or conditions, or constitutes a relaxation of reporting or record keeping permit terms or conditions:
(b) Requires change to a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;
(c) Seeks to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject;
(d) For permits to construct, seeks to change the type of emissions control device or equipment to be constructed, and the new equipment has a higher potential to emit, emissions rate, heat input, or electrical output; or
(e) Otherwise warrants public notice and comment, as determined by the Department.
202.6 A permit to construct or modify a source shall be valid only if used within one (1) year from the date of issuance in one (1) of the following ways:
(a) The permittee has begun, or caused to begin, a continuous program of physical on-site construction of a source to be completed within a reasonable time; or
(b) The permittee has entered into binding agreements or contractual obligations that cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.
202.7 An action to amend, suspend, revoke, or deny the issuance or renewal of a permit under this section shall be in writing and shall include the following:
(a) The name and address of the applicant, or holder of, the permit;
(b) A statement of the proposed action and the proposed effective date and duration of a proposed suspension or denial of a permit;
(c) A statement of the reasons for the proposed action;
(d) A statement of when reapplication, if applicable, is acceptable;
(e) The procedure for requesting an appeal of the Department’s proposed action before it becomes final; and
(f) Any additional information that the Department deems necessary or appropriate to support the proposed action.
202.8 If the applicant or holder of permit requests an appeal pursuant to this section, a written response to the Department’s legal and factual basis for the proposed action is required, including any explanations, comments, and arguments relevant to the proposed action.
All persons desiring to comment on the proposed rulemaking should file comments in writing not later than thirty (30) days after publication of this notice in the D.C. Register. Comments should be clearly marked “Public Comments: Chapters 1 & 2 of the Air Quality Regulations” and filed with DOEE, Air Quality Division, 1200 First Street, N.E., 5th Floor, Washington, DC 20002, Attention: Stephen Ours, or e-mailed to airqualityregulations@dc.gov. Copies of the above documents may be obtained from DOEE at the same address.