July 2, 2018 Testimony of Melinda Bolling, DCRA

From the D.C. Council Committee of the Whole Hearing on July 2, 2018. testimony from Melinda Bollings, director of the Department of Consumer and Regulatory affairs. Her comments are followed by rebuttal testimony from Charles "Chuck" Elkins, an elected member of an Advisory Neighborhood Commission in the District.


Mendelson: Thank you. That would be helpful. Thank you, each of you.
Is Melinda Bolling here? Ah, there she is. And you are testifying on behalf of the government? When you're ready, and good afternoon.

Bolling: Good afternoon, Chairman Mendelson, Councilmembers, and staff. My name is Melinda Bolling, and it's my honor to serve as the Director of the Department of Consumer and Regulatory Affairs for the District of Columbia. And today I'm joined at the table with DCRA's new Legislative Officer, Mr. Robert Finn. I'm here to represent the Executive's testimony on 22-234, the "Leaf Blower Regulation Amendment Act of 2017." 

While noise complaints are an issue that DCRA that takes seriously, as drafted, the "Leaf Blower Regulation Amendment Act of 2017" poses several implementation challenges. We believe there are significant barriers to successful enforcement, and that the proposal may create unintended consequences based on the enforcement mechanisms in the bill as drafted.

Regulating the use of gas-powered leaf blowers poses a real challenge due to the brief length of time that leaf blowers are generally used. DCRA inspectors would not be able to consistently arrive quickly enough to inspect a noise complaint about a leaf blower while the leaf blower is still in use. Under the enforcement regime proposed by this bill, a resident may hear the noise of a leaf blower and call 311, DCRA, or the Metropolitan Police Department, MPD, to complain. To address this complaint, DCRA would need to send an inspector right away to the location of the complaint. As you're aware, traveling across the District can take anywhere from 15 to 60 minutes. Given the average yard sizes in the District of Columbia, and the tool's efficiency to complete the task, the inspector would likely not arrive at the property in time to witness any violation. 

Newton, Massachusetts, with a population of just over 89,000, implemented a much less restrictive leaf blower ordinance in 2017. In the period from April to October, the Newton Police Department responded to 320 leaf blower complaints. According to local media, the leaf blower ordinance was not being violated 75% of the times police responded to the 320 leaf blower complaints. Newton Police Lieutenant, Bruce Apotheker explained to reporters that the department did not want to sacrifice public safety, and didn't think that this was the best use of public resources. 

While the Council's bill envisioned DCRA, not MPD, as the enforcement authority, Newton's experience points to potential for the bill to drive an increase in call volume to MPD and 311. This would place a strain on the District's resources, all due to a law that DCRA would not even be able to effectively enforce. Finally, it is important to point out that Newton media reported frustrated landscaping companies viewed the city's leaf blower ordinance as a deterrent to working in the city. The landscaping and yard maintenance industry is a thriving sector in the District, with few barriers to entry. Frequent interactions with the DCRA inspectors could pose a perceived threat to many of the workers in the industry. 

In addition, under the bill, District residents would have to purchase new, expensive equipment to properly maintain their yards. DCRA urges Council to take into account the potential impacts on the landscaping industry and homeowners that could arise as a result of this bill. For all of these reasons, the Executive believes the legislation requires significant reworking to be successfully implemented and enforced. Thank you for providing me with the opportunity to testify today. I am happy to answer any questions you may have.

Mendelson: Thank you, Miss Bolling. Do you want to identify who's with you at the table?

Bolling: I did in the beginning, but I'll do it again. This is DCRA's new Legislative Officer, Robert Finn.

Mendelson: Thank you. All right, so I do have several questions. First of all, your testimony concludes by saying the legislation requires significant reworking, but you don't make any suggestions as to how. And given the objections that you raise, it sounds to me like you're basically saying you're opposed to the bill.

Bolling: Well, in its current form we do think there are major problems. I've had an opportunity to communicate electronically with Commissioner Elkins, and he had some different approaches, but I haven't had the time for my team to sit down with him to flesh it out to give it to the Council in a meaningful way. But I do think he had some good suggestions on ways to rework this.

Mendelson: Well, the bill's been around for a year and half, I think. Nope, a year and two months, so this is really the best time to come forward with some ideas. What alternative could possibly exist that wouldn't involve somebody from the District government having to go to the site in response to a call, to then ascertain whether there's a violation?

Bolling: Well, that's typically what we do with most of our enforcement. But as in the electronic communication that Commissioner Elkins compared it to the way that DCRA handles our trash hauler complaints that are time driven; he focused on affidavits by the complainant. That perhaps that could be used in lieu of actual witnessing by DCRA inspectors. But I haven't fleshed out with him because there's a little difference, because typically with trash hauler companies, you have clearly identified trucks with the names on the side. And we haven't seen, in all cases, that all of the landscape companies are clearly identified. And so we're not sure if you would go after the homeowner with the 500 dollar fine, or would you go after a non-clear, who the landscape entity is, because they're not always big companies. So there was a little reworking that we wanted to do, some more conversation, but we haven't gotten to that yet.

Mendelson: I'm not quite getting this, because an affidavit, I guess with the trash-hauling company that would be a company that's working after hours or before hours?

Bolling: Typically, yes, sir. It's before hours.

Mendelson: So, I would complain to you in writing that ABC Haulers was out at 6:30 in the morning, and it was truck #34, and it's ABC Haulers, and the license plate number, such and such. And if I didn't give you all of that information, then you wouldn't be able to do anything. But with the leaf blower, it would be-- Because we're talking about gas powered, we're not talking about all leaf blowers. It would be my allegation it's a gas-powered leaf blower. And maybe I would know the landscaping company, I wouldn't know the operator. Maybe they've got three leaf blowers, and one of them's gas? Maybe none of them are gas and I'm just a cranky neighbor. So, I don't even know how that would begin to work.

Bolling: Well, you've raised some very good points, Chairman Mendelson, about the enforcement challenge we would have, and litigation before an administrative forum. So, yes, we agree with you.

Mendelson: Okay, so then what do we-- It's the position of the Executive, then, that we just live with the leaf blowers?

Bolling: Well, the position is we're happy to have these things pointed out by the Commissioner that he thought were workable, and that we're happy to continue to work with Council and the Commissioner, or any other Commissioners, that have ideas that we can work through to see if it could happen.

Mendelson: Well, there are a lot of people who think that this is a problem that should have been solved a few years ago. The bill's been pending for a year and half. I can't begin to see what solution there would be that wouldn't run up against either the problems I just identified, or the problems you identified. Calls to 311, that would be-- I don't know if you said burdening the 311 system, but I'll use that word. And inspectors have to take time to come out. Or, an affidavit that would be completely unreliable, because how can you put in an affidavit that was proof that it was gas, unless I guess put gasoline on the paper. So I don't--

Bolling: I'm not disagreeing with you, Mr. Chairman, today.

Mendelson: Okay, so if you don't have a solution, that says to me that the Executive's position is to do nothing.

Bolling: Well, in the current form, we think we need to rework in with Council, working together.

Mendelson: But you can't tell me how?

Bolling: Well, again, perhaps there could be some way. But as I sit here, no, we do not have a solution to rework it in its current form.

Mendelson: In your statement, at the bottom of page 2, "Given the average yard sizes in the District of Columbia, and the tool's efficiency to complete the task, the inspector would likely not arrive." What does that mean, the tool's efficiency to complete the task?

Bolling: That it doesn't take very long to blow leaves, as opposed to rake them.

Mendelson: Ah. Okay. And then you refer to Newton, Massachusetts. It implemented a much less restrictive leaf blower ordinance. Can you tell me more about that ordinance?

Bolling: Well, I don't have the actual words of the ordinance, but they actually were going to, versus an administrative regulatory agency like DCRA, their calls were going to 311, and they were a much smaller jurisdiction. And they had 320 complaints in a short amount of time, but the vast majority of them weren't a violation of their ordinance. But I don't have the actual statute to show you.

Mendelson: Yeah, I get that you pointed out 320 leaf blower complaints, and not a good use of police. But I'm struck by, or focused on the "Implemented a much less restrictive blower ordinance.” And I'm dying to know what that is.

Cheh: Mr. Chairman, can I tell you?

Mendelson: Yes, Councilmember Cheh?

Cheh: It banned the use of gas-powered leaf blowers from Memorial Day to Labor Day, and then for the rest of the year, used a decibel level thereafter, which as you know, is very difficult to enforce.

Mendelson: Okay. So, that's much less restrictive. Maybe not. Councilmember Cheh, do you have questions?

Cheh: Yes, I do, but you know, Chairman, if you would indulge me, Commissioner Elkins has asked to respond to some of the points made by Director Bolling, and so would it be possible to call him back to the table?

Mendelson: Uh.

Cheh: Oh, he's anticipating that you're going to say yes.

Mendelson: We'll see.

Cheh: Well, we're seeing now. So, Commissioner Elkins, as part of my time, although I have my own questions, did you want to respond to something that you've just heard?

Elkins: Yes, if I could. I think we have the experience of a number of communities that we should draw on to form the enforcement and compliance effort in DC. We've tried to make a study of that in the last three years. We're not experts, but we think we've learned something from that. Number one, and I think this is true across all environmental regulations, voluntary compliance is the secret. And behind that is education. So, we're talking about a three-year period here, three-and-a-half year period in which education needs to take place. 

Number two is drawing on the experience of the trash hauler program, that there could be a 311 notice of a possible violation in which there could be a photograph of the leaf blower. These gasoline leaf blowers are quite distinguishable from battery-operated ones, so I think that would be relatively easy. 

Secondly, it's true that some of these lawn maintenance companies do not have signs on their trucks, but they do have license plate. And I think a little help from the DMA I think would help to figure out who these people are. 

And so the first step should be not to try to catch them in real time, but to provide this information to the department. The department can then, when they're out in the field or otherwise, put a door hanger on the door of the residents where this potential violation took place, and can send a letter to the company saying, "It's been reported that you violated this, do you know about the law, and here's what the law requires, et cetera." And hopefully voluntary compliance. 

There will be a few operators who won't comply. In those cases, it may well be necessary to call an inspector out, and to verify this. But we would hope that that would be a small percentage of cases. So, just to shorten it, we think that there are good examples out there, and we would be very happy -- and I've already offered this to Director Bolling -- we'd be glad to sit down with her and go through this. We have met with some of her staff, but clearly we can do more.

Cheh: Thank you, Commissioner. And I'd like to follow up in my remaining time. First of all, about this Newton analogy. I think it's inapt, both because the bulk of the enforcement other than Memorial Day to Labor Day, especially with leaves and that sort of thing, required a decibel level reading. And that itself is complicating. But it's not apt, and I reject, essentially, your testimony that confesses impotence in this area, which is essentially what it does. The fact of the matter is, in terms of environmental regulations, as the Commissioner was pointing out, there are many where we have a multiple-level strategy. 

But standing behind that strategy is an enforcement and a penalty. And we rely, then, both on voluntary compliance. People tend to comply with the law once they know it. We rely on education so that people do know what the law is. And then we rely on deterrence because people don't like to run afoul of the law. 

So, this confession of impotence, of being unable to enforce this legislation is I think unfounded. And I think that if the Executive, if the Mayor opposes this bill, it's for wont of sufficient investigation of the basis for the bill, and the basis of enforcement for the bill. And I would suggest that you all need to do your homework. Thank you, Mr. Chairman.

Mendelson: Thank you, Councilmember Cheh. Did you want to say something, Director Bolling?

Bolling: Oh, no. Thank you, sir. Good to see, sir.

Mendelson: All right. We're going to see you on the second bill?

Bolling: You will see me tomorrow for a long time.

Mendelson: Okay. Thank you, Director Bolling. 

--- End of Hearing on Bill 22-234 ---