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Notice of Final Rulemaking – Chapters 1 and 2 of the Air Quality Regulations

Friday, June 5, 2020

A Notice of Proposed Rulemaking was published in the D.C. Register for a thirty (30) day public notice and comment on February 3, 2017 at 64 DCR 001138. At the request of one commenter, the comment period was extended until March 24, 2017 by publication of notice on the DOEE website. The Department received five (5) sets of comments on this rulemaking, from the U.S. Environmental Protection Agency (EPA), Sierra Club, American Coatings Association (ACA), Consumer Specialty Products Association (CSPA), and Roof Coatings Manufacturers Association (RCMA).

EPA commented that there was a typographical error in the heading for the definition of “Standard Industrial Classification Code” under 20 DCMR § 199. The Department has corrected this error in this Final Rulemaking.

The Sierra Club submitted three (3) comments on this rulemaking. The first comment was that the proposed rulemaking undermined public participation in the agency decision-making process because it did not provide a rationale for the proposed changes. The Department notes that it extended the public comment period for this rulemaking in order to enhance public participation and that it otherwise met the requirements for rulemaking under the D.C. Administrative Procedure Act, therefore the Department did not make any changes in response to this comment. The second comment was that the Proposed Rule violated EPA’s Start-Up Shut-Down and Malfunction State Implementation Plan Call (SSM SIP Call) (80 Fed. Reg. 33840 (June 12, 2015)), because the variance provision granted the agency unbounded discretion to allow sources to violate federal Clean Air Act requirements and the requirements on control devices and practices allowed them to remove devices in violation of their air quality permits. The Department has made two clarifying amendments in response to this comment: (1) the Department has clarified that the variance provision under Section 103 may not be used to excuse performance of any federally enforceable emission limitation or requirement; and (2) the Department has clarified that any source removing a control device pursuant to § 102 shall first obtain an amendment to its Chapter 2 permit, if applicable, but that they may shut down the control device without a permit amendment, provided that they have received approval from the Department. The third comment was that the Department failed to address requirements under the SSM SIP Call to amend 20 DCMR § 606. The Department has declined to make any changes in response to this comment, as this rulemaking action was not intended to address all of the requirements of the SSM SIP Call.

ACA and RCMA each submitted one (1) comment on the rulemaking, and CSPA submitted three (3) comments. All three (3) commenters raised concerns with the proposed rulemaking’s use of South Coast Air Quality Management District (SCAQMD) Method 313 as a test method under the definition of “volatile organic compound” in 20 DCMR § 199. The Department agreed with the commenters’ concerns that this test method was not yet final and consequently has removed that reference in this Final Rulemaking. Additionally, ACA and CSPA raised concerns with the use of ASTM D6886 as a test method under the definition of “volatile organic compound”. The Department did not accept this comment as it has determined that ASTM D6886 is still useful in some situations and because it has authority to approve an alternative test method where appropriate. CSPA additionally commented that the Department should consider adding California Air Resources Board (CARB) Method 310. The Department did not accept this comment because it did not accept public comments on the use of Method 310, however, notes that it may still approve this as an alternative test method pursuant to 20 DCMR § 502.3. Finally, CSPA commented favorably on the amendment to the definition of “volatile organic compound” to update the cross-reference to federal regulations.

A detailed summary of the comments and responses is in the attachments section below.

This final rulemaking can be found in the D.C. Register (click on “View text”).