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Notice of Comment Period for Proposed Rulemaking - Amendments to Nuisance Odor Requirements

Tuesday, January 4, 2022

NOTICE OF PROPOSED RULEMAKING
Amendments to Nuisance Odor Requirements

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 §§ 8-101.05 and 8-101.06 (2016 Repl. & 2019 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) (2016 Repl. and 2019 Supp.)); and Mayor’s Order 2006-61, dated June 14, 2006; hereby gives notice of intent to adopt the following amendments to 903 (Odorous and Other Nuisance Pollutants) of Chapter 9 (Air Quality – Motor Vehicular Pollutants, Lead, Odors, and Nuisance Pollutants) of Title 20 (Environment) of the District of Columbia Municipal Regulations (DCMR) in no less than thirty (30) days from the date of publication of this notice in the District of Columbia Register.

The Act authorizes the Department to “[a]dopt standards governing emission of nuisance air pollutants likely to injure public health or welfare or interfere with reasonable enjoyment of life and property.” D.C. Official Code § 8-101.05(b)(1)(F).  Moreover, regulations adopted as part of the Act prohibit emitting odorous or other air pollutants likely to injure public health or interfere with the reasonable enjoyment of life or property.  Act § 3 (20 DCMR § 903; 32 DCR 647).  The proposed amendments will strengthen DOEE’s ability to enforce this nuisance-odor prohibition.  Though DOEE receives regular citizen complaints regarding nuisance odors from various types of sources, the complaints have, at times, been difficult to investigate due to the potential for odors to dissipate by the time the inspector arrives at the scene. Consequently, the Department is proposing to adopt a requirement that stationary sources emitting odors adopt an Odor Control Plan (OCP) under certain circumstances. This gives DOEE the ability to enforce compliance with the OCP in addition to the nuisance odor prohibition. If a source continues to emit nuisance odors despite compliance with the plan, DOEE would have the authority to require the source to update the plan in order to abate the nuisance.

The proposed rulemaking would require an OCP in three (3) circumstances. First, an OCP is required when DOEE identifies a nuisance odor from a source that is detectable when one (1) volume of odorous air has been diluted with two (2) or more volumes of odor-free air. Second, an OCP is required when DOEE receives odor complaints about a source from three (3) or more separate households or businesses within a thirty (30) day period, and a DOEE investigation verifies the suspected source of the odor and the affected parties. The third circumstance is if the source falls into one of six (6) source categories that are the most frequent sources of odor complaints. These source categories are (1) cannabis production operations; (2) certain types of painting operations, including autobody paint booths; (3) trash transfer stations; (4) asphalt processing plants; (5) wastewater treatment facilities; and (6) commercial solid fuel-fired cooking operations.

DOEE hereby gives notice of the intent to adopt these rules as final in not less than thirty days after the publication of the notice in the District of Columbia Register. Instructions for submitting comments may be found at the end of this notice.

Chapter 9, Air Quality – MOTOR VEHICULAR POLLUTANTS, LEAD, ODORS, AND NUISANCE POLLUTANTS, of Title 20, Environment, of the DMCR is amended as follows:

Section 903, odorous or other nuisance air pollutants, is amended to read as follows:

903.1  An emission into the atmosphere of odorous or other air pollutants from any source in any quantity and of any characteristic and duration that is, or is likely to be, injurious to the public health or welfare, or that interferes with the reasonable enjoyment of life and property, is prohibited.

903.2  The Department may require an owner or operator of a stationary source of odorous air pollutants to submit an Odor Control Plan (OCP) to the Department if:

(a)         The source emits odorous air pollutants that are detected by a trained inspector using a field olfactometer when one (1) volume of odorous air has been diluted with two (2) or more volumes of odor-free air, as measured at a location or locations where it is likely odorous air pollutants will be detected given the prevailing atmospheric conditions; or

(b)        The Department receives three (3) or more complaints about the source from distinct addresses, which includes distinct units, apartments, or suites at a single street address, within a thirty (30) day period; provided, that:

(1)        Each complainant signs and submits a written statement containing the following information:

(A)        The complainant’s name, address, and business, if applicable;
(B)        The date, time, duration, and description of the odor that the complainant detected; and

(C)        The suspected source of the odor; and

(2)        The Department confirms that the odor identified in the complaints is coming from the suspected source.

903.3  Any stationary source that falls within the following regulated categories shall submit an OCP:

(a)         Cultivation and dispensing of medical marijuana, as described in section 7 of the Legalization of Marijuana for Medical Treatment Initiative of 1999, effective July 27, 2010 (D.C. Law 18-210; D.C. Official Code § 7-1671.06), and any other marijuana cultivation, processing, or dispensing operation licensed under District law;
(b)        Painting operations subject to the requirements of 20 DCMR §§ 718 and 1409;

(c)         Trash transfer stations;
(d)        Asphalt processing plants;
(e)         Wastewater treatment facilities; and
(f)         Commercial solid fuel-fired cooking operations;

903.4  (a)         An owner or operator of a stationary source shall submit an OCP

meeting the requirements of § 903.5 by the following deadlines:

(1)         Within sixty (60) days of the issuance of an Administrative Order pursuant to section 903.2; or
(2)         For a source that falls within the regulated categories described in 903.3:

              (A)        Within sixty (60) days of effective date of the final rule, if the source was constructed before that date; or

                                                       (B)        At least sixty (60) days before commencing

construction if the source is to be constructed after the effective date of the final rule, or with the source’s permit application under 20 DCMR §§ 200.1 or 200.2, whichever is sooner.

(b)        The Department may order submission of an OCP in a period other than sixty (60) days on a case-by-case basis, upon consideration of the following factors:

                                         (a)         The severity of the odor;

                                         (b)        The number of distinct complainants;

(c)         The frequency of complaints; and

(d)        The amount of time needed by the source to develop the OCP.

903.5  An OCP shall contain requirements sufficient to control nuisance odors, including, to the extent applicable, the following information:

(a)         Source information:

(1)         Name of source;
(2)         Name, phone number, and email address (if available) of source’s owner or operator and point of contact;

(3)         Source physical address;
(4)         Source mailing address (if different from physical address);
(5)         Source type;
(6)         Source hours of operation;
(7)         Description of source operations; and
(8)         Emergency contact information;

(b)        The following information about any odor generated by the source:

(1)         Floor plan, specifying the locations of odor-emitting activity and emissions;
(2)         Specific odor-emitting activity; and

(3)         Phases (timing, length, etc.) of odor-emitting activity;

(c)         A description of the proposed odor mitigation procedures and practices, which must either be based on industry-specific best control technologies and best management practices or be otherwise sufficient to effectively prevent nuisance odors for all odor sources, and which must include the following:

(1)         Administrative controls:

(A)        Maintenance, testing, and audit procedures to ensure that control equipment is functioning properly and the OCP is being adhered to;
(B)        Staff training;

(C)        Recordkeeping procedures and forms; and
(D)        Any other work practices necessary to prevent nuisance odors.

(2)         A proposal concerning engineering controls, reviewed by a professional engineer licensed with the Department of Consumer and Regulatory Affairs and certified by the professional engineer to be sufficient to effectively mitigate odors for all odor sources, to address the following:

(A)        Engineering controls shall include each of the following components:

(i)          System design;
(ii)         Operational processes; and

(iii)        Maintenance plan; or

(B)        If the owner or operator of a source determines that engineering controls are not necessary to effectively mitigate odors for all or specific odor sources, the owner or operator shall submit that determination to the Department as part of its OCP.  

(d)        A timeline for implementation of odor mitigation practices, commencing upon notice from the Department that it has approved the OCP.
(e)         A description of the source’s procedures for receiving, responding to, and tracking complaints.

903.6  The Department shall review the OCP and determine whether it meets the requirements of § 903.5:

(a)         If the Department determines that the OCP meets the requirements of § 903.5, it shall approve the OCP and notify the source’s owner or operator of the approval; or
(b)        If the Department determines that the OCP does not meet the requirements of § 903.5, it shall disapprove the OCP and notify the source owner or operator in accordance with § 903.6.

903.7  If the Department notifies a source’s owner or operator that it has disapproved the OCP for that source, the Department shall provide a written description of the reason(s) for the disapproval and the owner or operator shall:

(a)         Submit modifications to the source’s OCP to address the deficiencies within a period established by the Department; and
(b)        Cease odor-emitting activities that are likely to cause a nuisance upon issuance of an order under § 106 until the modified OCP is approved.

903.8  If the Department notifies a source’s owner or operator that it has approved the OCP for that source, the owner or operator shall:

(a)         Implement its OCP per the timeline it has provided under § 903.5(d); and
(b)        Comply with the OCP, including any approved amendments, until the source ceases operation.

903.9  When a modification is made to a source or process at the source that has the potential to affect the nature or degree of odor, or affects the control of odor, the owner or operator of the source must submit an update to its OCP within thirty (30) days of the modification. If the modification is subject to the requirements of 20 DCMR § 200, the owner shall submit an updated OCP as part of the source’s permit application pursuant to that section.

903.10  Any owner or operator of a source that seeks a variance from the requirements of this section shall comply with the procedures under 20 DCMR § 103.

903.11  The owner or operator shall provide all records maintained pursuant to § 903.5(c)(1)(C) to the Department upon request.

903.12  The owner or operator shall report all deviations from the OCP to the Department within one (1) business day of the deviation;

903.13  Compliance with this section shall be determined as follows:

(a)         Compliance with the OCP shall be an affirmative defense to violations of § 903.1; however, in the event that the Department determines the OCP is inadequate to prevent violations of § 903.1, the Department may require the owner or operator to modify the OCP, in accordance with the procedures under § 903.7 and
(b)        Violation of standards set forth in this section that occur as a result of unavoidable malfunction, despite the conscientious employment of control practices, shall be an affirmative defense for which the owner or operator shall bear the burden of proof. A malfunction shall not be considered unavoidable if the owner or operator could have taken, but did not take, appropriate steps to eliminate the malfunction within a reasonable time, as determined by the Department.

Section 999, definitions and abbreviations, is amended as follows:

Section 999.1 is amended by adding the following definitions:

Administrative Controls – written procedural mechanisms used for odor mitigation.

Deviation – the failure to comply with any of the administrative or engineering controls in the source’s Odor Control Plan.

Engineering Controls – physical mechanisms used for odor mitigation, such as the installation of process equipment or the physical modification of a source’s process or process equipment.

Odor the property of a substance that stimulates the human olfactory organ.

Wastewater treatment facility – publicly owned treatment works as defined in 40 C.F.R. § 63.1595, sewer lift-stations, wastewater pumping stations, and equipment for on-site treatment of wastewater.

Section 999.2 is amended by adding the following abbreviation:

OCP – Odor Control Plan

All persons desiring to comment on the subject matter of this proposed rulemaking action shall submit written comments, not later than thirty (30) days after the date of publication of this notice in the District of Columbia Register, to Lauren Maxwell, Office of the General Counsel, 1200 First St, NE, Washington, DC 20002 or by electronic mail to [email protected]. Please use “Amendments to Nuisance Odor Requirements” in the subject line.

Copies of the proposed rules may be obtained between the hours of 8:00 a.m. and 4:00 p.m. at the address listed above, or by contacting Myra Campbell, Staff Assistant, at (202) 715-7645 or [email protected].

UPDATE:

  • Question and Answer Session - Amendments to Nuisance Odor Requirements - Friday January 28, 2022 at 3:00 PM
    At the request of stakeholders, DOEE will be hosting a question and answer session on the proposed amendments to its Nuisance Odor Requirements. In this session DOEE staff will walk through the proposed amendments and answer any questions stakeholders have about the proposed rulemaking. DOEE will not be accepting comments at this meeting and any comments should be sent to [email protected] by January 31.

The meeting can be joined via webex: 

Meeting link >>
Meeting number: 2314 747 6690
Password: utRepRyk223

Join by phone:

+1-202-860-2110 United States Toll (Washington D.C.)
1-650-479-3208 Call-in number (US/Canada)
Access code: 2314 747 6690