(a) It shall be unlawful to release any hazardous substance in the District, unless the release is in quantities permitted by federal or District law or by regulations promulgated by the Mayor to implement this chapter. A lawful release of a hazardous substance shall be reported to the Mayor within 24 hours of the release. The notification to the Mayor shall state the location and condition of the property where the hazardous substance was released and the type of hazardous substance that was released. A violation of this subsection shall be punishable by a fine not to exceed $50,000 or imprisonment not to exceed 5 years, or both. Each violation of this subsection shall constitute a separate offense and the penalties prescribed in this subsection shall apply separately to each offense.
(b) A responsible person shall be strictly liable, jointly and severally, for:
(1) The costs, including the interest on the costs, of an abatement action;
(2) The costs of a remedial cleanup and a health or any other risk assessment;
(3) The costs of any other response action; and
(4) Damages for injury to, destruction of, or loss of natural resources, including the reasonable cost of assessing the injury, destruction, or loss resulting from the release of the hazardous substance.
(c) For the purposes of this chapter, "a responsible person" is a person who, with regard to a property from which there is a release or threatened release of a hazardous substance that causes or contributes to the incurrence of a response cost:
(1) Is the owner or operator;
(2) At the time of contamination, was the owner or operator;
(3) By contract, or an agreement, arranged for the release, disposal or treatment of a hazardous substance on a property;
(4) Arranged for, or was responsible for the transportation of a hazardous substance for release, disposal or treatment at a property;
(5) By an act or an omission, caused or contributed to the contamination of a property if at the time of the act or omission, the person knew or had reason to know that the act or omission would cause the contamination of the property; or
(6) Knew or had reason to know that a property is contaminated and transferred ownership of the contaminated property after June 13, 2001, except if it is established by a preponderance of the evidence that the person did not participate in the management of the property, did not directly cause the contamination, and that the person:
(A) Acquired the contaminated property by inheritance or bequest;
(B) Holds ownership in the contaminated property or in property located on the contaminated property primarily to protect a valid and enforceable lien;
(C) Is a holder of a valid mortgage or deed of trust on a contaminated property, or a holder of a security interest in property located on a contaminated property;
(D) Is a fiduciary who has legal title to a contaminated property or to a property located on a contaminated property for purposes of administering an estate or trust of which the contaminated property or a property located on the contaminated property is a part;
(E) Is a holder of a mortgage or deed of trust who acquired title to a contaminated property through foreclosure, deed in lieu of foreclosure, or a tax sale;
(F) Except in the case of gross negligence or willful misconduct is an agency of the District government;
(G) Is a lender who extends credit for the performance of voluntary cleanup actions performed in accordance with the requirements of this chapter; or
(H) Is a lender who takes action to protect or preserve a mortgage or a deed of trust on a contaminated property or a security interest in property located on a contaminated property, by stabilizing, containing, removing, or preventing the contamination in a manner that does not cause or contribute to a contamination or significantly increase the threat of contamination. The lender must provide advance written notice of its actions to DDOE, or in the event of an emergency in which action is required within 12 hours, provides notice by telephone. The lender, prior to taking the action, is not a responsible party, and the action taken does not violate any provision of this chapter. Except that if the lender shall contribute to or cause further contamination to the property while taking any action pursuant to this subparagraph, the lender shall be liable solely for costs incurred as a result of the contamination which the lender caused or to which the lender contributed.
(7) A person shall not be considered a responsible person by virtue of conducting an environmental assessment on a property.
(d) To establish that a person did not know or did not have reason to know, as provided in subsections (c)(5) and (6) of this section, the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. To determine that a person did not know or did not have reason to know, a court shall consider any specialized knowledge or experience on the part of the person, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or the likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.
(June 13, 2001, D.C. Law 13-312, § 201, 48 DCR 3804; Apr. 8, 2011, D.C. Law 18-369, § 2(a), (c), 58 DCR 996.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 18-369 substituted "DDOE" for EHA"; rewrote subsec. (b); in the lead-in text of subsec. (c), substituted "who, with regard to a property from which there is a release or threatened release of a hazardous substance that causes or contributes to the incurrence of a response cost" for "who"; and, in subsec. (c)(1) and (2), substituted "operator" for "operator of a contaminated property". Prior to amendment, subsec. (b) read as follows:
"(b) Any person who causes or contributes to the contamination of a property shall be strictly, jointly and severally, liable for the costs, including the interests on the costs of abatement actions, remedial cleanup, health or any other risk assessment or any other responsive actions taken by the District."
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(a), (c) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).
Legislative History of Laws
For Law 13-312, see notes following § 8-631.01.
For history of Law 18-369, see notes under § 8-631.02.
Delegation of Authority
Delegation of Authority pursuant to D.C. Law 13-312, the "Brownfield Revitalization Amendment Act of 2000", see Mayor's Order 2003-41, March 27, 2003 (50 DCR 2898).
(a) A person shall not be liable pursuant to § 8-632.01(b) if the person establishes, by a preponderance of the evidence, that the release or contamination was caused by any of the following:
(1) An act of God;
(2) An act of war;
(3) The migration, flow, or movement of hazardous substances from property owned by a person unrelated to the person asserting the defense;
(4) An act or omission of an unrelated third party, if reasonable precautions were taken to prevent foreseeable releases;
(5) An act or omission of a third party if the act or omission was reasonably outside the scope of a prior or an existing contractual relationship and the person asserting the defense could not have reasonably foreseen or prevented the act or omission; or
(6) An act or omission that occurred prior to the acquisition of the property if due diligence had been exercised in investigating the possible existence of a release or contamination, except that due diligence shall not be required if the property was acquired by inheritance or bequest, through a foreclosure for tax delinquency, or by condemnation for blight or other threats to public health, safety, and welfare.
(b)(1) Notwithstanding § 8-632.01, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.
(2) If there are unrecovered response costs incurred by the District at a facility for which an owner of the facility is not liable by reason of paragraph (1) of this subsection, and if each of the conditions described in paragraph (3) of this subsection is met, the District shall have a lien on the facility, or may by agreement with the owner, obtain from the owner a lien on any other property or other assurance of payment satisfactory to the Mayor, for the unrecovered response costs.
(3) The conditions referred to in paragraph (2) of this subsection are the following:
(A) A response action for which there are unrecovered costs of the District is carried out at the facility; and
(B) The response action increases the fair market value of the facility above the fair market value of the facility that existed before the response action was initiated.
(4) A lien under paragraph (2) of this subsection shall:
(A) Be in an amount not to exceed the increase in fair market value of the property attributable to the response action at the time of a sale or other disposition of the property;
(B) Arise at the time at which costs are first incurred by the District with respect to a response action at the facility;
(C) Be subject to the requirements of subsection (1)(3) of this section; and
(D) Continue until satisfaction of the lien by sale or other means.
(June 13, 2001, D.C. Law 13-312, § 202, 48 DCR 3804; Apr. 8, 2011, D.C. Law 18-369, § 2(d), 58 DCR 996.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 18-369 rewrote the section, which formerly read:
"A person shall not be liable pursuant to § 8-632.01(b), if the person establishes by a preponderance of the evidence, that the release or contamination was caused by any of the following:
"(1) An act of God;
"(2) An act of war;
"(3) The migration, flow, or movement of hazardous substances from property owned by a person unrelated to the person asserting the defense;
"(4) An act or omission of an unrelated third party, where reasonable precautions were taken to prevent foreseeable releases;
"(5) An act or omission of a third party where the act or omission was reasonably outside the scope of a prior or an existing contractual relationship, and the person asserting the defense could not have reasonably foreseen or prevented the act or omission; or
"(6) An act or omission that occurred prior to the acquisition of the property where due diligence had been exercised in investigating the possible existence of a release or contamination, except that if the property was acquired by inheritance or bequest, or through a foreclosure for tax delinquency or condemnation for blight or other threats to public health, safety, and welfare."
D.C. Law 18-369 rewrote the section, which formerly read:
"A person shall not be liable pursuant to § 8-632.01(b), if the person establishes by a preponderance of the evidence, that the release or contamination was caused by any of the following:
"(1) An act of God;
"(2) An act of war;
"(3) The migration, flow, or movement of hazardous substances from property owned by a person unrelated to the person asserting the defense;
"(4) An act or omission of an unrelated third party, where reasonable precautions were taken to prevent foreseeable releases;
"(5) An act or omission of a third party where the act or omission was reasonably outside the scope of a prior or an existing contractual relationship, and the person asserting the defense could not have reasonably foreseen or prevented the act or omission; or
"(6) An act or omission that occurred prior to the acquisition of the property where due diligence had been exercised in investigating the possible existence of a release or contamination, except that if the property was acquired by inheritance or bequest, or through a foreclosure for tax delinquency or condemnation for blight or other threats to public health, safety, and welfare."
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(d) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).
Legislative History of Laws
For Law 13-312, see notes following § 8-631.01.
For history of Law 18-369, see notes under § 8-631.02.
(a) If DDOE approves an applicant's status as a non-responsible person pursuant to § 8-633.02, the participant's status as a non-responsible person continues upon acquiring an interest in the eligible property.
(b) Except as provided in subsection (c) of this section, a non-responsible person is not liable for existing contamination at the eligible property.
(c) A non-responsible person shall be liable for new contamination that the person causes or contributes to, and any exacerbation of existing contamination at the eligible property.
(June 13, 2001, D.C. Law 13-312, § 203, 48 DCR 3804; Apr. 8, 2011, D.C. Law 18-369, § 2(a), 58 DCR 996.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 18-369 substituted "DDOE" for "EHA" wherever it appeared.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(a) of Brownfield Revitalization Emergency Amendment Act of 2010 (D.C. Act 18-667, December 28, 2010, 58 DCR 95).
Legislative History of Laws
For Law 13-312, see notes following § 8-631.01.
For history of Law 18-369, see notes under § 8-631.02.
