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Notice of Final Rulemaking – Amending 20 DCMR Chapter 6 - Revisions to Air Quality Opacity Requirements

Monday, August 14, 2023

A Notice of Proposed Rulemaking was published in the District of Columbia Register for a 30-day public notice and comment period on May 12, 2023, at 70 DCR 006912. The public comment period ended on June 12, 2023, and DOEE virtually held a public hearing on June 12, 2023. In response to the Notice of Proposed Rulemaking, DOEE received two comment letters—one from the Environmental Protection Agency (“EPA”) and one from the District of Columbia Water and Sewer Authority (“DC Water”). No comments were received at the public hearing. DOEE notes that no petitioners in the legal case Sierra Club et al. v. Jackson submitted comments. Certain comments received from the EPA are related to a prior rulemaking and the District’s SIP. Read the summary of the comments received on the proposed rulemaking and DOEE’s response to those comments.

Summary of Final Rulemaking

This rulemaking amends 20 DCMR § 606 (Visible Emissions) to:

  • clarify how DOEE regulates emission units measured at facilities using a continuous  opacity monitoring system (“COMS”);
  • specify opacity limits for startup, cleaning, adjustment of combustion controls, or regeneration of emission control equipment;
  • remove affirmative defense provisions;
  • clarify the requirements of visible emissions limits for nonroad engines, requiring maintenance of logs; and
  • improve the clarity of the regulations.

The Acting Director of DOEE is amending these regulations in response to the United States Environmental Protection Agency’s (“EPA”) final action, Findings of Failure to Submit State Implementation Plan Revisions in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction (“Finding of Failure to Submit,” “FFS”) (January 12, 2022, 87 Fed. Reg. 1680). This EPA final action became effective on February 11, 2022, and gave the District 18 months from that date to submit an amendment to the District’s State Implementation Plan (“SIP”) or face sanctions under Section 109 of the Clean Air Act (“CAA”).

EPA issued the FFS for the District because the District had not submitted an amendment to the District’s SIP in response to the Startup, Shutdown, and Malfunction SIP Call (“SSM SIP Call”). The SSM SIP Call implements a settlement agreement executed on November 30, 2011, to address a lawsuit filed by Sierra Club and WildEarth Guardians in Sierra Club et al. v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal.). The SSM SIP Call also provided updates to EPA’s “cumulative guidance” on the “interpretation of CAA requirements with respect to the treatment of excess emissions during periods of startup, shutdown, and malfunction at a source” (“SSM Policy”). 80 Fed. Reg. 33842.

The Acting Director of DOEE adopted these rules as final on August 3, 2023. The final rulemaking took effect on August 11, 2023, through publication in the District of Columbia Register. The Final Rulemaking can be found in the DC Register and in the attachments section below.

DOEE will submit these final regulations to EPA as an amendment to the District’s SIP following their publication.