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New Maryland Environmental Laws Take Effect on October 1, 2009

Beveridge & Diamond, P.C - Client Alert, September 21, 2009

On October 1, 2009, a number of new Maryland environmental laws will take effect. Below is a brief overview of the status of several of these laws that may be of particular interest.  For more information, contact Pamela Marks at pmarks@bdlaw.com or (410) 230-1315.

  • Hazardous Substance Release Reporting

In 2008, the Maryland legislature adopted a new hazardous substance reporting requirement. As of October 1, 2009, releases into the environment that exceed a "threshold" must be reported "immediately" to the Maryland Department of the Environment (MDE). MDE has not met the June 30, 2009 deadline for promulgating implementing regulations; our most recent information is that a draft should be available for comment in approximately December, 2009.

MDE also has not yet issued a formal guidance explaining its enforcement position for the interim time period beginning October 1 and extending through promulgation of the regulations. The absence of implementing regulations and any definition of the "threshold" leaves uncertainty as to the current status of the reporting requirement. We are monitoring this issue and would be pleased to provide more information as the situation evolves. (2008 HB 977 / Environment Article, § 7-222 (d)).

  • Permit Application Notice Requirements

The requirements for providing notice to the public relating to permit applications have been expanded. As of October 1, 2009, in addition to other notice requirements, MDE must post required notices on its website. Also, MDE must "provide a method for interested persons to electronically request" additional notices concerning a permit. (2009 SB 47 / HB 1078 / Environment Article, § 1-602).

  • Cost Recovery for County Environmental Health Monitoring and Testing

Counties will be able to obtain reimbursement for the reasonable costs incurred for conducting environmental health monitoring or testing. Persons who may be liable to pay these costs include those who have liability under Titles 4, 7 and 9 of the Environment Article, provisions which encompass releases of oil and hazardous substances, and the discharge of pollutants into waters of the State. Costs are not recoverable if they are for monitoring or testing that duplicates State activities or that is not reasonably necessary to protect human health or the environment. Also, entry by a responsible person into a consent order with MDE bars cost recovery. (2009 HB 259 / Environment Article, §§ 1-304 & 9-342.2).

  • Nitrogen Reduction for Septic Systems Within the Critical Area

This law prohibits the installation and replacement of septic systems within the Chesapeake and Atlantic Bays Critical Area unless the new or replaced system utilizes the best available technology for nitrogen removal. To offset the additional expense, the law provides for financial assistance or a tax deduction. Although the law takes effect on October 1, 2009, the tax deduction only becomes applicable to taxable years beginning after December 31, 2009. (2009 SB 554 / HB 176 / Environment Article, § 9-1108 / Tax-General Article, § 10-208).

  • Increased Administrative Penalties Authorized for Water Pollution Violations

The State increased the maximum administrative penalty for violations of Maryland’s water pollution laws from $1,000 to $5,000 per violation. (2009 SB 408 / Environment Article, § 9-342).

Also rapidly approaching. . . . A change in the permit appeals procedure.

In Maryland, the new standing and appeals procedures for many environmental permits will become effective on January 1, 2010. The legislature eliminated administrative contested case hearings for many State air, waste, and water permits and licenses. Instead, individuals and organizations may request direct judicial review of final determinations. In order to seek review, the requester must have standing under federal standing criteria and must have participated in the applicable public participation process through the submission of oral or written comments. The law also authorizes judicial review of variance requests concerning development activity in the Critical Area buffer. We understand that MDE is evaluating a number of implementation issues, including whether the new procedures may impact any permit application that is already in process. (2009 SB 1065 / HB 1569 / Environment Article, Title 1, Subtitle 6, and §§ 5-204, 14-105, 14-508, 15-810, 16-204, 16-307 through 16-309).

On the Horizon under Federal Chesapeake Bay Initiatives . . .

On May 12, 2009, President Obama issued Executive Order 13508 to protect and restore the Chesapeake Bay and its watershed. The Federal agencies working on implementing the Executive Order released preliminary reports this month, and announced that they will release a draft strategy on November 9, 2009, initiating a 60-day public comment period. The goal is to conclude public comments in early 2010 and issue a final strategy in May, 2010.

On a parallel path, on September 17, 2009, EPA requested preliminary comments on the development of a Bay-wide Total Maximum Daily Load (TMDL) for nutrients and sediments in the impaired tidal segments of the Chesapeake Bay. Comments are due by December 18, 2009. Thereafter, EPA expects to develop and propose a TMDL, which will also be available for public comment. EPA plans to reduce nutrient and sediment inputs to the Bay through the NPDES program for point sources and, for nonpoint sources, primarily through Watershed Implementation Plans that will commit individual states to achieving specific reductions on a defined schedule.

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