Code of the District of Columbia

Subchapter IV. Hazardous Substance Response.


§ 8–634.01. Response and order authority.

(a) Upon receipt of information of a threatened or actual release of a hazardous substance, the Mayor may:

(1) Take response action not inconsistent with the Hazardous Substances Response Plan that the Mayor considers necessary to protect the public health or welfare or the environment;

(2) Issue an administrative order to perform a response action that is not inconsistent with the Hazardous Substances Response Plan;

(3) Take action necessary to protect the public health or welfare or the environment from an imminent and substantial threat;

(4) Secure such relief as may be necessary to abate such danger or threat, and the Superior Court of the District of Columbia may grant such relief as the public interest and the equities of the case may require;

(5) Issue an emergency executive order pursuant to Chapter 23 of Title 7 [§ 7-2301 et seq.], as may be necessary to protect the public health or welfare or the environment; and

(6) Issue an administrative order to enforce other provisions of this chapter.

(b) This chapter shall not prevent or impede an immediate response by the Mayor to a contamination or threat of contamination that presents imminent and substantial danger to the public.

(c) A federal, state, local, or District permit shall not be required for the portion of a response action conducted entirely onsite, if the response action is selected and carried out in compliance with this section.

(d) Any response action taken, ordered, or otherwise agreed to by the Mayor shall:

(1) Be protective of public health and welfare and the environment; and

(2) Attain a level of cleanup or control that attains legally applicable or relevant and appropriate standards, requirements, criteria, or limitations.

(e) Response actions in which treatment permanently and significantly reduces the volume, toxicity, or mobility of hazardous substances shall be preferred over response actions not involving such treatment.

(f) The Mayor may select a remedial action meeting the requirements of subsection (d) of this section that does not attain a level or standard of control at least the level or equivalent to a legally applicable or relevant and appropriate standard requirement if:

(1) The response action selected is only part of a total response action that will attain the level or standard when complete;

(2) Compliance with the requirement will result in greater risk to human health and the environment than alternative options;

(3) Compliance with the requirement is technically impracticable from an engineering perspective; or

(4) The response action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, or limitation, through use of another method or approach.


(June 13, 2001, D.C. Law 13-312, § 401, 48 DCR 3804; Apr. 8, 2011, D.C. Law 18-369, § 2(i), 58 DCR 996.)

Section References

This section is referenced in § 8-634.05, § 8-634.06, and § 8-636.03.

Effect of Amendments

D.C. Law 18-369 rewrote the section, which formerly read:

“Within one year of June 13, 2001, the Mayor shall develop and publish in the District of Columbia Register, a comprehensive hazardous substances response plan which shall include policies and procedures for responding to, and evaluating hazardous substance releases that may threaten public health and the environment. The response plan shall not be inconsistent with the provisions of this chapter.”

Emergency Legislation

For temporary (90 day) amendment of section, see § 2(i) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.02. Reimbursement for reasonable costs.

(a) A person who receives and complies with the terms of an order issued under this chapter may petition the Mayor for the reimbursement of the reasonable costs of the action, plus interest, from the Clean Land Fund; provided, that:

(1) The required action has been completed to the satisfaction of the Mayor; and

(2) The petition is filed within 60 days of the issuance of a Certificate of Completion by the Mayor.

(b) To obtain reimbursement, the petitioner shall establish by a preponderance of the evidence that:

(1) The petitioner is not liable for response costs under § 8-632.01, and that the costs are reasonable in light of the action required by the relevant order; or

(2)(A) The Mayor’s decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with the law.

(B) Reimbursement under this paragraph shall be limited to reasonable costs incurred under the portions of the order found to be arbitrary and capricious or otherwise not in accordance with the law.

(c) If the Mayor denies all or part of a petition made under this section, the petitioner may file an appeal in the Superior Court of the District of Columbia within 30 days of issuance of the Mayor’s decision.


(June 13, 2001, D.C. Law 13-312, § 402, 48 DCR 3804; Apr. 8, 2011, D.C. Law 18-369, § 2(j), 58 DCR 996.)

Section References

This section is referenced in § 8-633.08 and § 8-636.03.

Effect of Amendments

D.C. Law 18-369 rewrote the section, which formerly read:

“(a) In cases of hazardous substance release or threat of release, or upon receipt of notification pursuant to § 8-632.01, the Mayor shall determine whether there is a present or imminent and substantial threat to the public or the environment. The Mayor may issue an emergency executive order, consistent with the situation, pursuant to Chapter 23 of Title 7. The Mayor shall take any other reasonable and lawful actions necessary to protect public health and the environment from the threats of imminent or immediate contamination.

“(b) Nothing in this chapter shall prevent or impede an immediate response by the Mayor or any responsible person to a contamination or threat of contamination that presents imminent and substantial danger to the public.

“(c) Nothing in this chapter shall prevent or preclude the Mayor from securing access or obtaining information in any other lawful and reasonable manner. A person required to provide information pursuant to this chapter, may not claim that the information required is entitled to confidentiality protection unless the request for confidentiality is made in writing at the time the information is provided to Mayor.”

Emergency Legislation

For temporary (90 day) amendment of section, see § 2(j) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).

For temporary (90 day) addition of sections, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.03. Access to information.

(a) The Mayor, upon reasonable notice, may require any person who has or may have responsive information to:

(1) Furnish information or documents relating to:

(A) The identification, nature, and quantity of material that has been or is generated, stored, treated, or disposed of at a facility or transported to a facility;

(B) The nature or extent of the release or threatened release of a hazardous substance from a facility; or

(C) The ability of a person to pay for or perform a cleanup;

(2) Grant the Mayor access at reasonable times to any facility, establishment, place, property, or location to inspect and copy all documents or records relating to matters set forth in paragraph (1) of this subsection; or

(3) Copy or furnish to the Mayor all such documents or records relating to matters set forth in paragraph (1) of this subsection at the expense of the person.

(b)(1) A record, report, or other information obtained from a person under this section shall be available to the public, except upon a showing satisfactory to the Mayor that the record, report, or other information, or a part thereof, other than health or safety effects data, if made public would divulge methods or processes entitled to protection as a trade secret.

(2) The information, or a portion thereof, shall be considered confidential, except that a record, report, document, or other information may be disclosed by the Mayor when relevant in a proceeding under this chapter.

[(3)]A person required to provide information under this section shall not claim that the information is entitled to protection unless the request for confidentiality is made in writing at the time the record, report, or other information is submitted to the Mayor.

(4) The following information shall not be exempt from disclosure under § 2-534(a)(14):

(A) The trade name, common name, or generic class or category of the hazardous substance;

(B) The physical properties of the hazardous substance, including its boiling point, melting point, flash point, specific gravity, vapor density, solubility in water, and vapor pressure at 20 degrees Celsius;

(C) The hazards to health and the environment posed by the substance, including physical hazards such as explosion, and potential acute and chronic health hazards;

(D) The potential routes of human or ecological exposure to the substance at the facility, establishment, place, or property being investigated, entered, or inspected under this chapter;

(E) The location of disposal of a waste stream;

(F) Monitoring data or analysis of monitoring data pertaining to disposal activities;

(G) Hydrogeologic or geologic data; or

(H) Groundwater monitoring data.

(c) This chapter shall not prevent or preclude the Mayor from securing access or obtaining information in any other lawful and reasonable manner, including by issuing a subpoena to compel the production of information.


(June 13, 2001, D.C. Law 13-312, § 403; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.04. Entry, inspection, and sampling.

(a) Upon a determination of a threat or an actual release of a hazardous substance that is a threat to the public health, welfare, or the environment, for the purpose of inspection and obtaining samples, the Mayor may enter at reasonable times, and issue orders as necessary to gain entry to, a facility, establishment, or other property if:

(1) A hazardous substance may be, has been, or may have been generated, stored, treated, released, disposed of, or transported from the facility, establishment, or property; or

(2) Entry is needed to determine the need for response, the appropriate response, or to effectuate a response action under this chapter.

(b) The inspection and entry shall be completed with reasonable promptness.


(June 13, 2001, D.C. Law 13-312, § 404; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.05. Review.

If the Mayor selects a response action pursuant to § 8-634.01 that results in any hazardous substances remaining at the site, the Mayor shall review the response action no less often than each 5 years after the initiation of the response action to assure that human health and the environment are being protected by the response action being implemented. If, after the review, it is the judgment of the Mayor that action is appropriate at the site in accordance with § 8-634.01, the Mayor shall take or require the action.


(June 13, 2001, D.C. Law 13-312, § 405; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.06. Civil penalties.

Pursuant to § 8-634.01, a person who:

(1) Violates or fails to comply with an order of the Mayor, permit, or other applicable standard, requirement, regulation, or provisions of law pursuant to this chapter, shall be liable for:

(A) Civil penalties not to exceed $10,000 for each day of noncompliance; and

(B) An amount equal to 3 times the costs expended resulting from a failure to take proper action; and

(2) Without sufficient cause, willfully violates, fails, or refuses to comply with an order of the Mayor, permit, or other applicable standard, requirement, regulation, or provisions of law pursuant to this chapter, shall be liable for:

(A) Civil penalties not to exceed $25,000 for each day of noncompliance; and

(B) An amount equal to 3 times the costs expended resulting from a failure to take proper action.


(June 13, 2001, D.C. Law 13-312, § 406; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Section References

This section is referenced in § 8-633.08.

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.07. Judicial actions.

The Mayor may request the Attorney General, and the Attorney General shall have authority, to commence a civil action in the Superior Court of the District of Columbia:

(1) To compel compliance with an order of the Mayor, permit, or other applicable standard, requirement, regulation, or provisions of law pursuant to this chapter;

(2) To recover a response cost or natural resource damage, or for contribution;

(3) To declare future liability for a response cost or damage;

(4) For civil penalties not to exceed $25,000 for each day of noncompliance against any person who unreasonably fails to comply with an order of the Mayor, permit, or other applicable standards, requirement, regulation, or provision of law pursuant to this chapter; and

(5) For an amount equal to 3 times the costs expended resulting from a failure to take proper action.


(June 13, 2001, D.C. Law 13-312, § 407; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Section References

This section is referenced in § 8-634.09 and § 8-636.03.

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.08. Settlement authority.

(a) The Mayor, in his or her discretion, may enter into an agreement with a person to perform a response action if the Mayor determines that the response action will be properly completed by the person.

(b) The agreement shall be subject to public notice and comment. The Mayor may withdraw or withhold consent to the proposed settlement if comments disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper, or inadequate. The parties to the agreement, including the Mayor, may enforce the agreement in the Superior Court of the District of Columbia.

(c) The agreement may include limited covenants not to sue for contamination addressed in compliance with the terms of the agreement and may provide that the person shall not be liable to another person for response costs relating to a contamination addressed in compliance with the terms of the agreement.

(d) The Mayor may find a person eligible to participate in the voluntary cleanup program established under § 8-633.01 as part of an agreement.


(June 13, 2001, D.C. Law 13-312, § 408; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.09. Contribution action.

(a) A person may seek contribution from another person who is liable under § 8-632.01. The claim shall be brought in the Superior Court of the District of Columbia. In resolving a contribution claim, the court may allocate a response cost among liable parties using the equitable factors as the court determines appropriate.

(b) This section shall not diminish the right of a person to bring an action for contribution in the absence of a civil action under § 8-634.07.

(c) A person who has resolved his, her, or its liability to the District in an administrative or judicially approved settlement, or has been issued a Certificate of Completion under § 8-633.06, shall not be liable for a claim for contribution regarding a matter addressed in the settlement or Certificate of Completion. The settlement or Certificate of Completion shall not discharge another responsible person unless its terms so provide, but it shall reduce liability of the others by the amount of the settlement.


(June 13, 2001, D.C. Law 13-312, § 409; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Section References

This section is referenced in § 8-636.03.

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.10. Statute of limitations.

(a) The provisions of § 12-301(10) notwithstanding, an action by or on behalf of the Mayor to recover the cost of a response action under this section must be commenced within 6 years after the initiation of physical onsite response work.

(b) An action to compel the Mayor or another person to perform a duty brought under this section shall be commenced within 2 years after the date that the duty became nondiscretionary.


(June 13, 2001, D.C. Law 13-312, § 410; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)

Emergency Legislation

For temporary (90 day) addition, see § 2(k) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).


§ 8–634.11. Judicial review.

(a) In considering a challenge made to a response action taken or ordered under this chapter, or the denial of all or part of a petition for reimbursement under this chapter, the court shall uphold the Mayor’s decision in selecting the response action unless the objecting party can demonstrate on the administrative record that the decision was arbitrary and capricious or otherwise not in accordance with District law.

(b) If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with District law, the court shall award only the response costs or damages that are consistent with the Hazardous Substances Response Plan and other relief as is consistent with the Hazardous Substances Response Plan.

(c) In reviewing an alleged procedural error, the court may disallow the costs or damages only if the error was so serious and related to a matter of such central relevance to the action that the action would have been significantly changed had the error not been made.

(d) The Mayor shall establish an administrative record upon which the Mayor shall base the selection of a non-emergency response action. The administrative record shall be available to the public, at a minimum, by scheduling an appointment to inspect the record during regular business hours at DDOE.


(June 13, 2001, D.C. Law 13-312, § 411; as added Apr. 8, 2011, D.C. Law 18-369, § 2(k), 58 DCR 996.)