Chapter 14. Hazardous Materials Transportation.
Subchapter I. General.
§ 8–1401. Findings and purposes.
The Council of the District of Columbia makes the following findings and supports the following purposes:
(1) Many shipments of hazardous materials are made in the District of Columbia (“District”);
(2) The District is 1 of the few states that has not adopted the federal regulations governing the transportation of hazardous materials and motor carrier safety;
(3) According to statistics compiled by the federal Environmental Protection Agency, there have been 30 incidents involving the unintentional release of hazardous materials in transport in the District since 1985, none of which have been required by law to be reported to the District government;
(4) There have been a growing number of incidents involving the transportation of hazardous materials on highways surrounding the District in recent months;
(5) According to the United States Department of Transportation, there is an insufficient number of federal inspectors available to inspect vehicles transporting hazardous materials, causing many vehicles to go uninspected unless the states have regulations enabling them to carry out inspections;
(6) The District does not have a procedure for inspecting the safety of commercial motor vehicles that transport hazardous materials in the city, nor for monitoring the condition of the operators of those vehicles;
(7) Until the District adopts a system consistent with the federal motor carrier safety regulations that govern commercial motor vehicles, including those transporting hazardous materials, the District is ineligible to receive at least $225,000 per year in federal grant assistance for implementing the regulations;
(8) Other costs to the District associated with enforcing this chapter should be the responsibility of those who transport hazardous materials in the District;
(9) The Hazardous Materials Study Commission will no longer be necessary since the Commission’s mandate will be executed through the implementation of this chapter; and
(10) Residents of and visitors to the District should be protected from the serious risks associated with improper transportation of hazardous materials, overworked operators, and unsuitable maintenance of commercial motor vehicles, including vehicles transporting hazardous materials.
§ 8–1402. Definition.
For the purposes of this chapter, the term “hazardous materials” means substances or materials in a quantity and form that may pose an unreasonable risk to health, safety, or property when transported in commerce and includes explosives, radioactive materials, etiological agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, or compressed gases.
§ 8–1403. Hazardous Materials Transportation Program.
The Mayor shall establish a Hazardous Materials Transportation Program that shall include at a minimum:
(1) A description of the criteria for determining what materials constitute hazardous materials that is consistent with the federal hazardous materials transportation regulations of the United States Department of Transportation;
(2) The identification of the types and quantities of hazardous materials transported in the District;
(3) The identification of the carriers and shippers of the hazardous materials;
(4) A designation of primary and alternate routes for the transportation of hazardous materials in the District consistent with the federal hazardous materials transportation regulations and the federal motor carrier safety regulations of the United States Department of Transportation and taking into consideration factors that will ensure the highest degree of safety to individuals and property, including the following:
(A) Population density along the primary and alternate routes;
(B) Traffic and street conditions, including dimensions of streets and alleys;
(C) The ability to evacuate individuals in the vicinity of the primary and alternate routes should evacuation become necessary;
(D) The type and quantity of hazardous materials being transported;
(E) Whether the hazardous materials are route-controlled quantities of radioactive materials consistent with the federal hazardous materials transportation regulations; and
(F) Consistency, to the extent practicable, with the laws and regulations of adjacent states and local jurisdictions likely to be affected by the route selections;
(5) A system governing the transportation, packaging, labelling, and placarding of hazardous materials transported in the District consistent with the federal hazardous materials transportation regulations;
(6) A system to ensure motor carrier safety consistent with the federal motor carrier safety regulations that will qualify the District for federal grant assistance to implement this chapter;
(7) The inspection of commercial motor vehicles, including vehicles that transport hazardous materials in the District consistent with the federal hazardous materials transportation regulations and federal motor safety carrier regulations;
(8) Repealed.
§ 8–1403.01. Stops and inspection.
To determine compliance with this chapter and its implementing regulations, a police officer may stop the driver of a motor vehicle and enter upon the premises of a motor carrier that is regulated pursuant to this chapter and inspect any of the following:
(1) All equipment, parts, and accessories, including carrier maintenance, certification, and safety records;
(2) All driver records, including driver’s license, permits, hours of service records, certificate of physical examination, and training records;
(3) All manifests, including bills of lading or other shipping documents; and
(4) All cargo and cargo areas, including the removal of cargo seals when necessary to conduct a safety inspection.
§ 8–1403.02. Consent to inspection.
(a) The operation of a vehicle subject to this chapter and its implementing regulations on any highway or roadway in the District shall constitute the consent of the driver and the owner of the vehicle to the inspection pursuant to § 8-1403.01.
(b) The driver of a vehicle shall obey every sign and every direction of a police officer to stop the vehicle and submit to an inspection.
§ 8–1404. Penalties.
(a) Violations of this chapter or any rule promulgated pursuant to § 8-1405 shall be adjudicated as provided by Chapter 23 of Title 50.
(b) The Mayor, by rule, may establish civil fines and penalties for violations of this chapter or any rule promulgated pursuant to § 8-1405.
(c)(1) As an alternative sanction, any person who knowingly or willfully violates this chapter, or any rule promulgated pursuant to § 8-1405 shall be subject to a fine of not less than $100 and not more than $10,000, imprisonment not to exceed 1 year for each violation, or both. Each day shall constitute a separate violation and the penalties prescribed shall be applicable to each violation.
(2) Prosecution for violations of this subsection shall be brought by the Corporation Counsel.
§ 8–1404.01. Reimbursements.
(a) The owner of any hazardous material motor carrier that releases a hazardous material shall reimburse the District for all expenditures made by the District to contain, remove, or respond to such a release.
(b) The Mayor shall notify by certified mail the owner of any hazardous material motor carrier that releases a hazardous material of the costs incurred by the District to contain, remove, or respond to the release.
(c) If the owner of the hazardous material motor carrier does not reimburse the District for all expenditures made to contain, remove, or respond to the release, within 10 days of the posting of notice by the Mayor, the Corporation Counsel may bring a civil action to seek reimbursement from the owner of the motor carrier.
§ 8–1405. Rules.
Within 6 months of March 16, 1989, the Mayor shall, pursuant to subchapter I of Chapter 5 of Title 2, issue rules to implement the provisions of this chapter. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day review period, the proposed rules shall be deemed approved.
Subchapter II. Terrorism Prevention in Hazardous Materials Transportation.
§ 8–1421. Findings.
The Council of the District of Columbia finds that:
(1) A terrorist attack on a large-quantity hazardous material shipment near the United States Capitol (“Capitol”) would be expected to cause tens of thousands of deaths and a catastrophic economic impact of $5 billion or more.
(2) The threat of terrorism facing District of Columbia residents and workers in the vicinity of the Capitol requires an urgent response that recognizes and addresses the unique status of this area in American politics and history, and the risk of terrorism that results from this status.
(3) While the federal government has occupied the field of en route security and routing in the aviation context, it has not addressed the subject of rail car routing for security purposes. Moreover, the federal government has not acted to address the terrorist threat resulting from the transportation of ultra-hazardous materials within 2 miles of the Capitol, the White House, and the United States Supreme Court, unique terrorist targets.
(4) Shippers of ultra-hazardous materials do not need to route large quantities of ultra-hazardous chemicals near the Capitol in order to ship these chemicals to their destinations, and alternative routes would substantially decrease the aggregate risk posed by terrorist attacks.
(5) Requiring permits for ultra-hazardous shipments from a Capitol Exclusion Zone that encompasses all points within 2.2 miles of the Capitol would impose no significant burden on interstate commerce.
§ 8–1422. Definitions.
For the purposes of this subchapter, the term:
(1) “Capitol Exclusion Zone” means all points within 2.2 miles of the United States Capitol Building; provided, that the Capitol Exclusion Zone shall not extend beyond the geographic boundaries of the District of Columbia.
(2) “Emergency” means an unanticipated, temporary situation that threatens the immediate safety of individuals or property, as determined by the District Department of Transportation.
(3) “Person” means an individual or a commercial entity.
(4) “Practical alternative route” means a route:
(A) Which lies entirely outside the Capitol Exclusion Zone; and
(B) Whose use would not make shipment of the materials in question cost-prohibitive.
§ 8–1423. Prohibition on shipments of hazardous materials.
Except in cases of emergency, it shall be illegal in the Capitol Exclusion Zone, without a permit, to:
(1) Transport any of the following:
(A) Explosives of Class 1, Division 1.1, or Class 1, Division 1.2, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 kilograms;
(B) Flammable gasses of Class 2, Division 2.1, as designated in 49 C.F.R. § 173.2, in a quantity greater than 10,000 liters;
(C) Poisonous gasses of Class 2, Division 2.3, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 liters, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.116; and
(D) Poisonous materials, other than gasses, of Class 6, Division 6.1, in a quantity greater than 1,000 kilograms, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.133; or
(2) Operate a vehicle or move a rail car which:
(A) Is capable of containing explosives of Class 1, Division 1.1, or Class 1, Division 1.2, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 kilograms, and has exterior placarding or other markings indicating that it contains such materials;
(B) Is capable of containing flammable gasses of Class 2, Division 2.1, as designated in 49 C.F.R. § 173.2, in a quantity greater than 10,000 liters, and has exterior placarding or other markings indicating that it contains such materials;
(C) Is capable of containing poisonous gasses of Class 2, Division 2.3, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 liters, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.116, and has exterior placarding or other markings indicating that it contains such materials; or
(D) Is capable of containing poisonous materials, other than gasses, of Class 6, Division 6.1, in a quantity greater than 1,000 kilograms, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.133, and has exterior placarding or other markings indicating that it contains such materials.
§ 8–1424. Permits.
(a) The District Department of Transportation may issue permits authorizing the transportation of materials listed in § 8-1423 upon a demonstration that there is no practical alternative route. A permit may require adoption of safety measures, including time-of-day restrictions.
(b) The District Department of Transportation may collect fees for the permits in accordance with the rules issued under § 8-1426.
(c) Permit fees collected pursuant to this section shall not exceed the cost of implementing and enforcing this subchapter.
§ 8–1425. Penalties.
(a) Any person who violates § 8-1423 or rules issued under § 8-1426 shall be subject to a civil penalty not to exceed:
(1) $10,000 for a first offense; or
(2) $25,000 for any subsequent offense.
(b) The fines assessed and collected under subsection (a) of this section shall be deposited into the General Fund of the District of Columbia.
§ 8–1426. Rules.
The Mayor, pursuant to subchapter I of Chapter 5 of Title 2, and in consultation with the District of Columbia Department of Transportation, the Emergency Management Agency, the Fire and Emergency Medical Services Department, and the Metropolitan Police Department, shall issue rules to implement the provisions of this subchapter, including a schedule of permit fees to support analysis, communications to shippers and carriers, and the enforcement program.
Subchapter III. Strict Liability for Release of Hazardous Materials During Transport.
§ 8–1441. Definitions.
For the purposes of this subchapter, the term:
(1) “Carrier” means the person who owns the locomotive or motor vehicle, excluding the trailer or rail car, used in transporting any of the hazardous materials identified in § 8-1442.
(2) “Fund” means the Hazardous Materials Reimbursement Fund established by § 8-1447.
(3) “Motor vehicle” means any vehicle propelled by internal-combustion engine, electricity, or steam, other than a vehicle designed to run only on rails or tracks, that is intended or used for moving freight, merchandise, or other commercial loads or property. The term “motor vehicle” shall include any trailer attached to the motor vehicle.
(4) “Person” shall have the same meaning as in § 8-1302(5).
(5) “Rail car” means any vehicle without motor power that is intended or used for moving freight, merchandise, or other commercial loads or property on rails or tracks and is drawn by a locomotive.
(6) “Trailer” means a vehicle without motor power intended or used for carrying freight, merchandise, or other commercial loads or property and drawn or intended to be drawn by a motor vehicle, whether such vehicle without motor power carries the weight of the property wholly on its own structure or whether a part of such weight rests upon or is carried by a motor vehicle.
(7) “Transport” means movement by a rail car or motor vehicle.
§ 8–1442. Strict liability for release of hazardous materials during transport.
Subject only to the exclusions and limitations set forth in §§ 8-1444 and 8-1445, and in addition to any other remedies available to the government of the District of Columbia, a carrier who transports into the District any of the hazardous materials listed in this section shall be strictly liable for all costs incurred by the District of Columbia in responding to a release or threatened release of any of the following within the geographic boundaries of the District of Columbia:
(1) Explosives of Class 1, Division 1.1, or Class 1, Division 1.2, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 kilograms;
(2) Flammable gasses of Class 2, Division 2.1, as designated in 49 C.F.R. § 173.2, in a quantity greater than 10,000 liters;
(3) Poisonous gasses of Class 2, Division 2.3, as designated in 49 C.F.R. § 173.2, in a quantity greater than 500 liters, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.116;
(4) Poisonous materials, other than gasses, of Class 6, Division 6.1, in a quantity greater than 1,000 kilograms, and belonging to Hazard Zones A or B, as defined in 49 C.F.R. § 173.133;
(5) Infectious agents, assigned to risk group 4 in 49 C.F.R. § 173.134 unless the infectious agent is the subject of an exception identified in 49 C.F.R. § 173.134; and
(6) Radioactive materials in a concentration greater than that specified by the United States Nuclear Regulatory Commission in 10 C.F.R. § 30.70 (exempt concentrations), or in a quantity required to be labeled under 10 C.F.R. Part 30, Appendix B, or requiring the consideration of the need for an emergency plan for responding to a release under 10 C.F.R. § 30.72.
§ 8–1443. Costs recoverable by the District of Columbia.
Costs recoverable by the District of Columbia under § 8-1442 shall include all costs related to:
(1) Containment of the gasses, explosives, and materials identified in § 8-1442;
(2) Necessary cleanup and restoration of the site and the surrounding environment;
(3) Removal of the gasses, explosives, and materials identified in § 8-1442;
(4) Such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of any of the gasses, explosives, and materials identified in § 8-1442, or to mitigate damage to the public health or welfare that may otherwise result from a release or threat of a release;
(5) Natural resource damages;
(6) Attorney’s fees and costs;
(7) Reimbursement for private collection firm’s services, when used; and
(8) Applicable interest on all costs and expenses incurred.
§ 8–1444. Civil action.
(a) The Attorney General of [for] the District of Columbia may institute an action in the Superior Court of the District of Columbia against any person liable pursuant to § 8-1442 to recover all costs incurred by the District of Columbia.
(b) Notwithstanding the rights of the District of Columbia to institute an action as provided in subsection (a) of this section, any person who has expended funds to remedy environmental damage resulting from the release of any of the gasses, explosive, or materials identified in § 8-1442 may also bring an action in the Superior Court of the District of Columbia against any person who may be liable for such damage pursuant to § 8-1442. Such person’s right to recover costs shall be limited to expenditures that are incurred for the purposes described in § 8-1443 and that are consistent with the laws and rules of the District of Columbia. A person’s right to recovery under this subsection shall not be barred by the fact that the party bringing the action is itself liable to the District of Columbia under this section.
§ 8–1445. Defenses to liability.
There shall be no liability under § 8-1442 for a person otherwise liable who can establish by a preponderance of the evidence that the costs resulting from their acts or omissions were caused solely by:
(1) An act of God;
(2) An act of War;
(3) An act or omission of a third party other than an employee or agent of the defendant, or other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant, if the defendant establishes by a preponderance of the evidence that the defendant:
(A) Exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances; and
(B) Took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
(4) Any combination of the foregoing paragraphs.
§ 8–1446. Punitive damages.
In addition to the damages authorized elsewhere in this subchapter, punitive damages may be awarded, if it is proved that the plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the transportation of the gasses, explosives, and materials identified in § 8-1442.
§ 8–1447. Establishment of Hazardous Materials Reimbursement Fund.
(a) There is established within the General Fund of the District of Columbia a segregated, nonlapsing fund to be known as the Hazardous Materials Reimbursement Fund. All funds as set forth in subsection (b) of this section shall be deposited into the Fund without regard to fiscal year limitation and shall not revert to the General Fund of the District of Columbia at the end of any fiscal year or at any other time, but shall be continually available for the uses and purposes set forth in subsection (c) of this section. The Fund shall be administered by the Mayor.
(b) The Chief Financial Officer shall deposit into the Fund all costs recovered by the District of Columbia pursuant to this subchapter.
(c) All funds deposited shall be available for use by the Mayor to reimburse District of Columbia agencies for costs incurred by the release or threatened release of the hazardous materials identified in § 8-1442.
