Section 20-2504. ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW

 

2504.1 With respect to a matter governed by the Pesticide Operation Regulations, Chapters 22 through 25 of this title, a person adversely affected or aggrieved by an enforcement action of the Department shall exhaust administrative remedies by timely filing an administrative appeal with, and requesting a hearing before, the Office of Administrative Hearings (OAH), established pursuant to the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76; D.C. Official Code §§ 2-1831.01 et seq.), or OAH’s successor.

 

2504.2 The Department may pursue administrative enforcement actions through:

 

(a)  Warning notices;

 

(b)  Field notices or directive letters;

 

(c)  Stop sale, use, or removal orders;

 

(d)  Notices of violation;

 

(e)  Compliance orders;

 

(f)  Notices of violation combined with an immediate compliance order or stop sale, use, or removal order;

 

(g)  Denial, suspension, or revocation of pesticide registration;

 

(h)  Denial, modification, suspension, or revocation of a license;

 

(i)  Notices of infraction;

 

(j) DDOE internal notices of violation or notices of infraction; or

 

(k)  Any other order necessary to protect public health, safety, or welfare, or the environment.

 

2504.3For the purposes of this chapter, a DDOE internal notice of violation or notice of infraction:

 

(a) Shall not be an action of the Department that a person may appeal to OAH, except as stated in  § 2504.4(b);

 

(b) Shall be responded to within fifteen (15) calendar days of service of the notice, including a written statement containing the grounds, if any, for opposition; and

 

(c) Shall not waive compliance or toll any period of fine or penalty.

 

2504.4If a person fails to agree to or settle an internal notice of infraction or otherwise denies a claim stated in an internal notice of infraction, the Department may cancel the internal notice of infraction and file a notice of infraction for adjudication with OAH.

 

2504.5A person aggrieved by an action of the Department shall file a written appeal with OAH within the following time period:

 

(a) Within fifteen (15) calendar days of service of the notice of the action; or

 

(b) Another period of time stated specifically in the section for an identified Department action.

 

2504.6Notwithstanding another provision of this section, the Department may toll a period for filing an administrative appeal with OAH if it does so explicitly in writing before the period expires.

 

2504.7OAH shall:

 

(a) Resolve an appeal or a notice of infraction by:

 

(1) Affirming, modifying, or setting aside the Department’s action complained of, in whole or in part;

 

(2) Remanding for Department action or further proceedings, consistent with OAH’s order; or

 

(3) Providing such other relief as the governing statutes, regulations and rules support;

 

(b) Act with the same jurisdiction, power, and authority as the Department may have for the matter currently before OAH; and

 

(c) By its final decision render a final agency action which will be subject to judicial review. 

 

2504.8The filing of an administrative appeal shall not in itself stay enforcement of an action; except that a person may request a stay according to the rules of OAH.

 

2504.9The burden of proof in an appeal of an action of the Department shall be allocated to the person who appeals the action, except the Department shall bear the ultimate burden of proof for any action it takes that denies a personal, property, or other right.

 

2504.10The burden of production in an appeal of an action of the Department shall be allocated to the person who appeals the action, except that it shall be allocated:

 

(a) To the Department when a party challenges the Department’s denial, suspension, modification, or revocation of a:

 

(1) Pesticide registration;

 

(2) Certification or license; or

 

(3) Other right;

 

(b) To the party who asserts an affirmative defense; and

 

(c) To the party who asserts an exception to the requirements or prohibitions of a statute or rule.

 

2504.11The final OAH decision on an administrative appeal shall thereafter constitute the final, reviewable action of the Department, and shall be subject to the applicable statutes and rules of judicial review for OAH final orders.

 

2504.12Judicial review of a final OAH decision shall not be de novo, but shall be a review of the administrative record alone and shall not duplicate agency proceedings or consider additional evidence.

 

2504.13Nothing in this chapter shall be interpreted to:

 

(a)Provide that a filing of a petition for judicial review stays enforcement of an action; or

 

(b)Prohibit a person from requesting a stay according to the rules of the court.

 

 

authority

Section 12(a) of the Pesticide Operations Act of 1977, effective April 18, 1978 (D.C. Law 2-70; D.C. Official Code § 8-411(a) (2013 Repl.)); Section 11(a) of the Pesticide Education and Control Amendment Act of 2012, effective October 23, 2012 (D.C. Law 19-191; D.C. Official Code § 8-440(a) (2013 Repl.)); Section 103(b)(1)(B)(ii)(II) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.03(b)(1)(B)(ii)(II) (2013 Repl.)); the Brownfields Revitalization Amendment Act of 2010 (Brownfields Act), effective April 8, 2011 (D.C. Law 18-369; D.C. Official Code §§ 8-631.01 et seq. (2013 Repl.)); and Mayor’s Order 98-47, dated April 15, 1998, as amended by Mayor’s Order 2006-61, dated June 14, 2006.

source

Final Rulemaking published at 62 DCR 3340 (March 20, 2015).