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
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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
1
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
2
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.
1
See American Lung Association, State of the Air 2013, available at
http://www.stateoftheair.org/2013/states/district-of-columbia/district-of-columbia-11001.html.
2
See http://www.epa.gov/oaqps001/greenbk/ancl.html.
3
Keith A. Anderson, Committee on Transportation and the Environment Hearing on B20-368 and B20-569, January
2, 2014, at 4; Ali Mirzakhalili, Committee on Transportation and the Environment Hearing on B20-368 and B20569, January 2, 2014, at 1.
4
See National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion
Engines; New Source Performance Standards for Stationary Internal Combustion Engines, Final Rule, EPA
Docket No. EPA-HQ-OAR-2008-0708, 78 Fed. Reg. 6674, January 30, 2013.
5
Mirzakhalili Testimony at 1-2; Northeast States for Coordinated Air Use Management, Air Quality, Electricity,
and Back-up Stationary Diesel Engines in the Northeast, August 1, 2012, at 3.
3
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.
6
Dr. Jerome Paulson, Committee on Transportation and the Environment Hearing on B20-368 and B20-569,
January 2, 2014, at 3-5.
7
Joseph E. Bowring, Committee on Transportation and the Environment Hearing on B20-368 and B20-569, January
2, 2014, at 3.
4
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
8
Terry Boston, Committee on Transportation and the Environment Hearing on B20-368 and B20-569, January 2,
2014, at 2; Bowring Testimony at 5-6.
9
In fact, the PJM Independent Market Monitor indicates that allowing back up generators unrestricted participation
in DR programs may even destabilize grid reliability. See Bowring Testimony at 5-6.
10
Dr. Paulson Testimony at 3-5.
11
See, e.g., Jennifer L. Berger, Committee on Transportation and the Environment Hearing on B20-368 and B20569, January 2, 2014, at 2-3.
12
Johanna Shreve, Committee on Transportation and the Environment Hearing on B20-368 and B20-569, January 2,
2014, at 3.
13
Beth Mellen Harrison, Committee on Transportation and the Environment Hearing on B20-368 and B20-569,
January 2, 2014, at 2.
5
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.
SECTION-BY-SECTION 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.
14
15
Paulson Testimony at 2.
Id. at 4.
6
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.
Section 12 authorizes the Mayor to issue cease and desist orders where a
hazardous condition endangering the health or safety of District residents or the environment is
determined to exist due to noncompliance with the act; and authorizes the Mayor to issue
compliance orders and take any measures necessary to remedy a hazardous condition.
Section 13 provides an administrative appeals process for persons
aggrieved by actions of the Mayor taken pursuant to the act.
Title II. Demand Response Generating Sources
Section 201 defines “lowest achievable emissions rate” and “demand response generating
source.”
Section 202 requires a person who owns or operates an internal combustion engine as a
demand response generating source to track and submit an annual operating report for the source.
Section 203 limits the use of internal combustion engines as demand response generating
sources by prohibiting the use of emergency generators as demand response sources and
requiring all demand response generating sources to implement lowest achievable emissions rate
technologies as defined by DDOE.
Title III. Indoor Air Quality
Subtitle A. Indoor Mold Disclosure Amendment
Section 301 amends the Rental Housing Act of 1985 to add subparagraph (K) requiring
landlords to disclose to potential tenants any information known about indoor mold above
7
DDOE’s threshold requiring professional remediation in the previous 3 years, unless the mold
has been remediated.
Subtitle B. Residential Indoor Mold Assessment and Remediation
Section 302 defines “Director,” “dwelling unit,” “indoor mold assessment professional,”
indoor mold contamination,” “indoor mold remediation professional,” “professional indoor mold
assessment,” and “professional indoor mold remediation.”
Section 303 directs DDOE to set a threshold level of indoor mold contamination
requiring professional indoor mold remediation, and to issue guidelines for removal of indoor
mold in concentrations below that threshold.
Section 304 directs DDOE to issue certifications and licenses for conducting indoor mold
assessment and remediation in the District, and authorizes fees necessary to administer the
section.
Section 305 establishes indoor mold remediation obligations for residential property
owners who receive notice that indoor mold contamination exists in a tenant’s dwelling unit or in
a common area of the property.
Section 306 establishes that, in a private action, a professional indoor mold assessment
finding contamination at or above the threshold set by DDOE requiring professional remediation
creates a rebuttable presumption of a violation of the property maintenance and housing codes,
and gives the Mayor discretion to rely upon a professional indoor mold assessment in issuing
notices of violations of the property maintenance and housing codes.
Section 307 clarifies that nothing in the act is intended to create a private right of action
against the District and its officers or employees.
Section 308 establishes a non-lapsing indoor mold assessment and remediation fund to be
used to administer the indoor mold certification program and to issue grants to low-income
residents for indoor mold assessment or to assist in compliance with remediation obligations.
Section 309 clarifies that nothing in the act affects any common law remedies otherwise
available.
Title IV. Rules, Fees, and Fines
Section 401 authorizes the mayor to promulgate regulations to implement the act.
Section 402 authorizes the Mayor to establish fees applicable to the act.
Section 403 authorizes the Mayor to establish civil penalties or fines to enforce the act
and to require reimbursement of costs for services.
8
Title V. Repealer
Section 501 repeals section 4 of the District of Columbia Air Pollution Control Act of
1984.
Section VI. Fiscal Impact Statement and Effective Date
Section 601 adopts the fiscal impact statement.
Section 602 provides the effective date of this legislation.
LIST OF WITNESSES AND HEARING RECORD
On Thursday, January 2, 2014, the Committee on Transportation and the Environment
held a hearing on Bill 20-368, the “Air Quality Amendment Act of 2013.” A video recording of
the hearing can be viewed at oct.dc.gov. The record was open until January 16, 2014. The
following witnesses testified at the hearing or submitted statements outside of the hearing:
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Terry Boston, President and CEO, PJM
Ali Mirzakhalili, Director, Division of Air Quality, Delaware Dept. of Natural
Resources and Environmental Control
Joe Bowring, Monitoring Analytics, PJM Independent Market Monitor
Rick Counihan, Vice President Regulatory Affairs, EnerNOC, Inc.
Bruce C. Bereano, Lobbyist, EnerNOC, Inc.
Don DiCristofaro, President, Blue Sky Environmental
Parisa B. Norouzi, Executive Director, Empower DC
Amanda Northcross, Empower DC and the Ivy City Civic Association
Karla Butler, Commissioner, ANC 5C
Evelyn Fraser, Public Witness
Gerald Fittipaldi, Public Witness
Dr. Jerry Paulson, Children’s National Medical Center
Kathy Zeisel, Esq., Senior Supervising Attorney, Children’s Law Center
Nicola Y. Whiteman, Esq. VP of Government Affairs, DC AOBA
Katalin Peter, DC Association of Realtors
Gloria Dunbar, ARM Assistant VP Borger Management, Inc.
Beth Melon Harrison, Supervising Attorney, Legal Aid Housing Unit
Lauren Godles, Legal Assistant, Legal Aid Housing Unit
Misty Thomas, Staff Attorney, Washington Legal Clinic for the Homeless
Dr. Ronique Shields Harris, Medical Officer of HSCSN
Craig Channell, Vice President & Director of Operations, WC Smith & Co.
Cynthia Briggs, Public Witness
Peta-Gay Lewis, Public Witness
Jennifer Berger, AARP Legal Counsel for the Elderly
9
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Monica McLamore, Public Witness (Client of Jennifer Berger)
Deborah Akel, President, Rochelle Tenants Association
Farah Fosse’, Director, Affordable Housing Preservation
Anna Duncan, Latino Economic Development Center
Bruno Avila, 1111 Massachusetts Ave. NW Tenants Association
Herbert Mutt, 1111 Columbia Rd. NW Tenants Association
Tisha Allen, DC Preservation League
Comm Kathy Henderson, ANC 5B
Keith A. Anderson, Director of the District Department of the Environment
The Hearing Record for this public hearing is on file with the Office of the Secretary.
IMPACT ON EXISTING LAW
Bill 20-368 would amend the District of Columbia Air Pollution Control Act of 1984,
effective March 15, 1985 (D.C. Law 5-165; D.C. Official Code § 8-101.01 et seq.), to expand
and clarify the authority granted to the Mayor under the District’s air pollution control program.
B20-368 would amend Section 222 of the Rental Housing Act of 1985, effective July 17, 1985
(D.C. Law 6-10; D.C. Official Code § 42-3502.22) to require landlords to disclose knowledge of
unremediated indoor mold beyond a threshold set by the District Department of the Environment
to potential tenants.
FISCAL IMPACT
A fiscal impact statement prepared by the Chief Financial Officer and dated __________
is attached to this report.
COMMITTEE ACTION
On April 15, 2014, the Committee on Transportation and the Environment convened a
mark-up on Bill 20-368, the “Air Quality Amendment Act of 2013.” Present and voting were
Chairperson Mary M. Cheh ….
The meeting was adjourned.
LIST OF ATTACHMENTS
(A)
(B)
(C)
(D)
(E)
Bill 20-368, as introduced
Fiscal Impact Statement
Legal Sufficiency Determination
Comparative Print of Bill 20-368
Committee Print of Bill 20-368
10