563.1 With respect to a matter governed by Sections 557 through 562 of this chapter, a person adversely affected or aggrieved by an action of the District Department of the Environment (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, as amended (D.C. Law 14-76; D.C. Official Code, §§ 2-1831.01 et seq.), or OAH's successor.

563.2 For the purposes of Sections 557 through 562 of this chapter, an action of the Department taken with respect to a person shall include:

(a) Signed settlement of a decision;

(b) Approval;

(c) Denial;

(d) Determination; or

(e) Other action of the Department which constitutes the consummation of the Department's decision-making process and is determinative of a person's rights.

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

(a) 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.

563.4 An action of the Department identified in this section shall become the final, unappealable, and unreviewable action of the Department unless a person has filed a timely administrative appeal with OAH within fifteen (15) days of the action.

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

563.6 OAH shall:

(a) Resolve an appeal by:

1. (1) Affirming, modifying, or setting aside the Department's action complained of, in whole or in part;
2. (2) Remanding for Department action or further proceedings, consistent with OAH's order; or
3. (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 that will be subject to judicial review.563.7 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.563.8 The 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.563.9 The 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:
4. (1) License;
5. (2) Permit;
6. (3) Continuation of an approval; or
7. (4) Other right;
8. (b) To the party who asserts an affirmative defense; and
9. (c) To the party who asserts an exception to the requirements or prohibitions of a statute or rule.563.10 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.

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

563.12 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.

563.13 If a term in a provision of this section conflicts with a provision in another section of this chapter, the term in the provision of this section controls.

SOURCE: Final Rulemaking published at 60 DCR 10732 (July 19, 2013).