Council of the District of Columbia

Council of the District of Columbia

Committee on the Environment, Public Works, and Transportation

Committee Report

1350 Pennsylvania Avenue, N.W., Washington, DC 20004

To: Members of the Council of the District of Columbia

From: Mary M. Cheh, Chairperson

Committee on Transportation and the Environment

Date: April 15, 2014

Subject: Bill 20-368, the “Air Quality Amendment Act of 2013”

The Committee on Transportation and the Environment, to which Bill 20-368, the “Air Quality Amendment Act of 2013” was referred, reports favorably on the legislation, which the Committee revised to incorporate air quality concerns raised at the public hearing and to better achieve the aims of the original act, and recommends its approval by the Council of the District of Columbia.

CONTENTS

Statement of Purpose and Effect Page 2

Legislative History Page 2

Background and Committee Reasoning Page 3

Section-by-Section Analysis ___ __Page 6

List of Witnesses and Hearing Record _____ Page 9

Impact on Existing Law _____ Page 10

Fiscal Impact _____ Page 10

Committee Action _____ Page 10

Attachments _____ Page 11

STATEMENT OF PURPOSE AND EFFECT

To amend the District of Columbia Air Pollution Control Act of 1984 to modify and clarify the authority of the Mayor to establish a comprehensive program for the control and prevention of air pollution in the District of Columbia, to establish an indoor air hazard education program, to provide the Mayor with inspection authority and a right of entry to safeguard and preserve air quality in the District, to require the Mayor to establish an electronic procedure for receiving and responding to air quality complaints, to provide for civil, criminal, administrative and other enforcement of the act, to provide a penalty for false statements, to provide a right to an administrative appeal of certain actions, to require disclosure of information related to the operation of demand response generating sources to the District Department of the Environment, to prohibit emergency generators from being used as demand response generating sources, to require that demand response generating sources meet lowest achievable emissions rate technology; to amend the Rental Housing Act of 1985 to require disclosure by residential property owners to tenants of indoor mold contamination; to provide definitions for indoor mold contamination, professional indoor mold assessment, and professional indoor mold remediation, to require the District Department of the Environment to set a threshold of indoor mold contamination beyond which professional remediation is required, to require the District Department of the Environment to issue standards and certifications for indoor mold assessment and remediation, to require residential property owners to remediate indoor mold contamination, to provide that in a cause of action by a tenant against a residential property owner for a violation of the District Housing or Property Maintenance Codes (“Codes”), an indoor mold assessment finding a certain level of contamination shall create a rebuttable presumption of a violation of the property owner’s obligation to maintain the property under the Codes, to establish the Indoor Mold Assessment and Remediation Fund, to establish authority for the Mayor to promulgate rules, a schedule of fees and fines and seek reimbursement of costs; and to repeal a section of the District of Columbia Air Pollution Control Act of 1984.

LEGISLATIVE HISTORY

June 26, 2013 Introduction of B20-368 by Councilmembers McDuffie, Cheh, Wells, and Grosso

June 26, 2013 Referral of B20-368 to the Committee on Transportation and the Environment

July 5, 2013 Notice of Intent to Act on B20-368 is published in the District of Columbia Register

November 29, 2013 Notice of a Joint Public Hearing on B20-368 is published in the District of Columbia Register

January 2, 2013 Public Hearing on B20-368 held by the Committee on Transportation and the Environment

April 15, 2013 Consideration and vote on B20-368 by the Committee on Transportation and the Environment

BACKGROUND/COMMITTEE REASONING

I. Background & Legislative Action

A. Air Quality in the District

Poor air quality, whether outdoor or indoor, can negatively affect District residents’ health and quality of life. Although air quality in the District has improved in recent years, the District’s rate of childhood asthma is significantly higher than the national average,[1] and the region remains a federally-designated non-attainment zone for both ozone and particulate matter 2.5 national ambient air quality standards.[2] Additionally, the U.S. EPA is considering an even more stringent ozone standard that the District will need to take increased measures to attain.[3]

The District’s original air quality law, the District of Columbia Air Pollution Control Act of 1984 predates Home Rule and was enacted as a combination of governing law and implementing regulations. Due to the structure of this law, the District Department of the Environment (DDOE) has never been able to fully access the intended authority of the act. The original act is in need of an update to incorporate modern penalties and air pollution complaint procedures, and to move certain authorities granted in the act through regulatory provisions into statute to ensure the District’s air quality control programs are enforceable.

In addition to the District’s air quality program enforcement concerns, recent changes in U.S. EPA regulations allowing owners of diesel-powered back-up or emergency internal combustion engines (“emergency generators”) to be paid to operate their generators during times of high demand on the grid have created a potential threat to improvement of the District’s outdoor air quality.[4] In a densely-populated urban area such as the District, unrestricted participation in these programs could generate hot spots of high ozone, NOX, and particulate matter on high-demand days, which are often already the worst air quality days of the year.[5] The District must take steps to protect its residents from the unintended consequences of EPA’s reduced standards.

Indoor air quality also affects the health and quality of life of District residents. In particular, indoor mold can also be a health hazard, particularly for children with asthma.[6] There are no nationwide standards establishing unsafe levels of indoor mold, and mold itself is not a District housing code violation. Additionally, unlike some other states, the District has no certification program for indoor mold remediators and sets no remediation standards, so it can be very difficult for tenants to resolve the issue of persistent indoor mold in their dwelling units if they do not have a cooperative landlord.

B. Legislative Action: Description & Analysis

A. Air Pollution Control Program

This bill would amend the District of Columbia Air Pollution Control Act of 1984 to clarify the authority of DDOE to protect the District’s air quality and enforce air pollution laws through emissions limits, permitting, inspections, fines, and other methods. It would also direct DDOE to make public an electronic air quality complaint form, to allow public tracking of air quality complaints, and to report quarterly on air quality complaints in the District.

Due to the structure of original law, DDOE has not been able to fully implement the intended authority of the act. Additionally, science has advanced and awareness of the importance of environmental stewardship has increased since 1984. This bill amends the act to incorporate modern penalties based on federal air pollution laws, to add air pollution complaint procedures, and to codify certain compliance and enforcement authorities to ensure DDOE can adequately enforce the District’s air quality laws.

B. Restriction of Demand Response Generating Sources

This bill would limit the participation of internal combustion engines in demand response (DR) programs by prohibiting the use of back-up or emergency generators in such programs, and requiring any source wishing to participate in DR programs to implement lowest achievable emissions rate technology (LAER).

Back-up or emergency generators are often old, diesel-fired, highly-polluting engines that are subject to fewer emission controls than other sources, because they are traditionally understood to operate only during emergencies.[7] Due to recent changes in EPA regulations, these pollution sources have become eligible to participate in emergency DR programs, wherein owners are paid to turn on emergency generators during times of high demand on the electric grid. Allowing this type of DR has the unintended consequence of replacing more traditional DR, which relies on energy conservation and efficiency, with dirty, behind-the-meter generation by polluting sources throughout the city. To make matters worse, emergency DR is often called into use on hot days when demand on the grid is high, which are usually the worst air quality days of the year.

PJM, the District’s regional transmission organization, and Monitoring Analytics, the PJM Independent Market Monitor, made clear through testimony at the hearing that, despite its name, “emergency” DR is solely an economic product, and the participation of emergency generators in DR is not necessary for grid reliability.[8] The bill’s limits on DR generating sources would restrict DR in the District to primarily energy conservation-based demand response, which provides all the same reliability benefits as diesel-powered generation DR without the environmental costs.[9] District law needs to place firm limits on the use of new air polluting sources in demand response programs to protect air quality.

C. Indoor Air Quality Disclosure

The bill would amend the Rental Housing Act of 1985 to require landlords to disclose unremediated indoor mold contamination found by a professional assessor to be above a threshold level set by DDOE.

D. Indoor Mold Assessment and Remediation

Studies have shown associations between visible mold and the development of asthma in young children, and indoor mold can exacerbate asthma caused by allergies, as well.[10] At the hearing, the Committee heard many anecdotal cases of low-income or elderly tenants with health problems due to significant indoor mold that they have been unable to properly remediate.[11] The Office of the Tenant Advocate estimates that half of its intake cases involving housing code violations also involve a complaint of indoor mold,[12] and the D.C. Legal Aid Society calculated that half of the complaints filed with the D.C. Superior Court Housing Conditions Calendar list indoor mold as a problem in the tenant’s home.[13]

At the public hearing, Dr. Jerome A. Paulson, Director of the Mid-Atlantic Center for Children's Health and the Environment and Medical Director for National and Global Affairs at the Child Health Advocacy Institute at Children's National Health System, testified:

There is no doubt that exposure to mold causes human health problems. . . . For the most part, mold causes problems with the eyes, nose, throat and lungs. Most commonly, people who react to mold have runny, red, itchy eyes, runny nose, scratchy throat and/or cough. For those with asthma, exposure to mold can cause worsening of symptoms such as cough, shortness of breath and sleeping problems and make such symptoms difficult to control. For some with asthma, exposure to mold can cause the onset of an asthma attack and make such an attack difficult to control. There is also a growing body of evidence that exposure to visible mold is associated with the de novo development of asthma in young children.[14]

Dr. Paulson also stressed the importance of remediation of indoor mold wherever it is found to be present, and stated that a notification requirement alone was “insufficient to protect human health of those in buildings covered under the proposal. . . . In order for this legislation to be effective, it must require cleanup of known mold contamination . . . .”[15]

Bill 20-368 would require DDOE to establish a mold assessment and remediation certification and licensing program, and to set a threshold of indoor mold contamination beyond which professional remediation would be required. The bill also creates a rebuttable presumption of a housing code violation in a private action by a tenant against a landlord when a professional indoor mold assessment finds contamination above the level set by DDOE, the landlord has been notified, and the landlord has not remediated the mold. Further, it authorizes fees for the certification program and establishes a non-lapsing fund where they are to be deposited. Any excess monies in the fund are to be used to provide indoor mold assessments to low-income tenants, or to assist in compliance with remediation requirements for low-income landlords.

SECTIONBYSECTION ANALYSIS

Title I. Air Pollution Control Program

Section 101 amends the District of Columbia Air Pollution Control Act of 1984 as follows:

Subsection (a) amends section 5 to outline the powers that the Mayor may exercise in the administration of a comprehensive program for the control and prevention of air pollution in the District, including research and education, cooperation with other jurisdictions, adoption of air pollution and air quality standards, adoption of standards governing nuisance air pollutants, and the establishment of an indoor air hazard education program. Additionally, this subsection authorizes the Mayor to hold hearings, secure necessary services, receive and administer grants and donations, and take any other action necessary. Finally, it directs the Mayor to create a public electronic air quality complaint form and to track and report complaints.

Subsection (b) redesignates section 6 as section 14.

Subsection (c) adds new sections 6 through 13.

Section 6 authorizes inspections of premises reasonably believed to be subject to the act with consent or a warrant, and authorizes the Mayor to investigate and require persons or entities subject to the act to maintain and submit records, install monitoring equipment, sample emissions, and require any other information the Mayor requires.

Section 7 establishes that each day of a violation of the act is a separate offense.

Section 8 establishes civil penalties of not more than $37,500 per day per offense for violations of the act, and allows the Mayor to impose alternative sanctions.

Section 9 establishes criminal penalties for willful or reckless violations of the act, not to exceed $25,000 per offense per day, imprisonment not to exceed one year, or both.

Section 10 provides that a person who makes false statements in documents submitted or maintained under the act is guilty of a misdemeanor and subject to a fine not to exceed $10,000, imprisonment not to exceed 6 months, or both.

Section 11 provides that the Mayor may impose other sanctions such as revocation or denial of permits or certifications for failure to comply with the act, and authorizes the Attorney General to initiate civil actions to enforce compliance with the act.