2505 ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW

2505.1 With respect to a matter governed by the Critical Area rules, 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) or OAH's successor.

2505.2 For the purposes of this chapter, an action of the Department taken with respect to a person shall include any:

(a) Approval of a permit or certification;

(b) Denial of a permit or certification;

(c) Compliance order;

(d) Administrative order for costs and expenses;

(e) Stop work order; or

(f) Other action of the Department which constitutes the Department's final decision process and is determinative of a person's rights or obligations.

2505.3 For the purposes of this chapter, a Notice of Violation or Enforcement Notice:

(a) Shall not be an action of the Department that a person may appeal to OAH;

(b) Shall be responded to within the time specified in the notice, including a written statement containing the grounds, if any, for opposition; and

(c) Shall not constitute a waiver of compliance or tolling of a period for a fine or penalty.

2505.4 If a person fails to agree to or settle an Enforcement Notice or otherwise denies a claim stated in an Enforcement Notice, the Department may cancel the Enforcement Notice and file a Notice of Infraction (NOI) with OAH for adjudication.

2505.5 A 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 this section for an identified Department action.

2505.6 The 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.

2505.7 The 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.

2505.8 An action for judicial review of a final OAH decision shall not be a de novo review of OAH's factual conclusions, but shall be a review of the administrative record alone and not duplicate agency proceedings or hear additional evidence.

2505.9 Nothing 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.

SOURCE: Final Rulemaking published at 68 DCR 5254 (May 14, 2021).