§ 8–635.01. Institutional control.

(a) DDOE is authorized to create, modify, maintain and disseminate records, informational systems, educational materials and other materials that are necessary to protect public health and the environment at contaminated properties cleaned up pursuant to this chapter or any other laws.

(b) DDOE is authorized to issue and execute instruments pertaining to properties cleaned up pursuant to this chapter and properties adversely affected by residual hazardous substances from the cleaned-up properties. When necessary, DDOE shall request other District agencies to issue and execute instruments pertaining to properties cleaned up pursuant to this chapter or other pertinent instruments. The instruments shall include:

(1) Notice of residual risk, which shall describe residual hazardous substances and their location on a property and any engineering or institutional controls that are in place at the facility;

(2) Residual risk restriction, which may apply to the use of the property or to the use of specific resources on the property to the extent that the restriction will provide flexibility in use but must be consistent with the objectives of this chapter;

(3) Hazardous substance easement, which may grant DDOE access to the property for the purposes of monitoring the levels of hazardous substances and the maintenance and functioning of engineering or institutional controls;

(3A) Environmental covenant signed by the DDOE in accordance with Chapter 6C of this title; and

(4) Other orders that run with the land if any other instruments authorized pursuant to this section is found to be insufficient in implementing the objectives of this chapter.

(c) The Recorder of Deeds shall record any instruments issued pursuant to this section, with the deed to a concerned property.

(d) Any instruments issued pursuant to this section shall run with the land and may not be declared unenforceable under any circumstances, including lack of property interest, lack of privity of estate or contract, lack of benefit to a particular property, or any rule against restraints on transfer of property. DDOE may execute, modify, or terminate environmental covenants entered into pursuant to this section in accordance with Chapter 6C of this title. DDOE may modify, rescind, or extinguish any other instrument issued pursuant to this section for good cause consistent with the objectives of this chapter; provided, that the public is notified and given the opportunity to comment on the proposed action.

(June 13, 2001, D.C. Law 13-312, § 501, 48 DCR 3804; May 12, 2006, D.C. Law 16-95, § 201, 53 DCR 1652; Mar. 25, 2009, D.C. Law 17-353, §§ 109, 181, 56 DCR 1117; Apr. 8, 2011, D.C. Law 18-369, § 2(a), 58 DCR 996.)

Effect of Amendments

D.C. Law 16-95, in par. (b)(3), substituted “;” for “; and”; added par. (b)(3A); in par. (b)(4), substituted “Other orders” for “Orders”; and rewrote subsec. (d), which had read as follows: “(d) Any instruments issued pursuant to this section shall run with the land and may not be declared unenforceable under any circumstances, including lack of property interest, lack of privity of estate or contract, lack of benefit to a particular property, or any rule against restraints on transfer of property. EHA may modify, rescind, or extinguish any instrument issued pursuant to this section for good cause consistent with the objectives of this chapter provided that the public is notified and given the opportunity to comment on the proposed action.”

D.C. Law 17-353, in subsec. (b), substituted “cleaned-up properties” for “cleaned up properties” and “instruments pertaining to properties cleaned up pursuant to this act or other pertinent” for “the same or pertinent the” in the lead-in language, and substituted “run” for “runs” in par. (4), and validated previously made technical corrections in subsec. (d).

Emergency Legislation

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).