Section 21-1834. ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW

 

1834.1With respect to a matter governed by this chapter, a person adversely affected or aggrieved by an 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.

 

1834.2For the purposes of this chapter, an action of the Department taken with respect to a person includes:

 

(a)An approval;

 

(b)A denial;

 

(c)A modification;

 

(d)An order;

 

(e)A notice of infraction;

 

(f)A determination; or

 

(g)Any other action of the Department which constitutes the consummation of the Department’s decision-making process and is determinative of a person’s rights or obligations.

 

1834.3A 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)Within another period of time, if expressly provided in a section of this chapter governing a particular Department action.

 

1834.4Notwithstanding 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.

 

1834.5OAH shall:

 

(a)Resolve an appeal or 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. 

 

1834.6The 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.

 

1834.7The 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 when it denies a right.

 

1834.8The 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 suspension, revocation, or termination of a:

 

(1)Permit; or

 

(2)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.

 

1834.9The 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.

 

1834.10Nothing 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

District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.01 et seq. (2013 Repl.)); the Water Pollution Control Act of 1984, effective March 16, 1985 (D.C. Law 5-188; D.C. Official Code §§ 8-103.01 et seq. (2013 Repl. & 2016 Supp.)) (the Water Pollution Control Act); and Mayor’s Order 2006-61, dated June 14, 2006.

source

Final Rulemaking published at 63 DCR 13424 (October 28, 2016).