Maryland 2017 Environmental Legislative Agenda Set
March 6 marked the final day for the introduction of bills in the Maryland General Assembly without a rules suspension. Below are highlights of environmental or related public health bills under consideration in the Maryland General Assembly. A number of bills reflect national trends, such as expanded restrictions on flame retardants, mercury and lead in products, and the curbing of antibiotic use (in farming) to maintain antibiotic effectiveness. Others reflect ongoing policy debates in Maryland, such as regarding whether and how to allow natural gas production by hydraulic fracturing, and how to reduce the contribution of nutrients to surface water from septic systems.
The General Assembly will debate these bills over the next month. Stakeholders should assess whether and how these bills could impact their operations. Even if some of these bills are unsuccessful, they could be a topic for summer study or bills for next year’s legislation.
Child Care Products Containing Flame-Retardant Chemicals - Prohibition
House Bill 206 prohibits the import, sale, or offer for sale of any child care product or furniture that contains more than 0.1% of certain flame retardants (DECABDE, HBCD, TBBPA, TCEP, or TDCPP) by mass and is intended for use by a child under the age of 12 years old. The bill imposes penalties not to exceed $1,000 for a first violation and not to exceed $2,500 for each subsequent violation. The bill allows for suspension of the ban should the fire safety benefits of the substances be determined to be greater than the associated health risks. The bill would take effect on October 1, 2017, and require the Maryland Department of Health and Mental Hygiene (DHMH) to promulgate regulations on or before January 1, 2018.
Lead and Mercury Wheel Weights - Prohibited
House Bill 66 prohibits the use or sale of externally attached lead wheel weights composed of greater than 0.1% lead by weight or greater than 0.1% mercury by weight during the first tire installation, replacement, or balancing for used vehicles registered in the State by January 1, 2019 and for all new vehicles registered in the State by January 1, 2020. The bill also requires the State to ensure that no vehicles in the State Fleet are equipped with an externally attached lead wheel weight that is composed of greater than 0.1% lead by weight or greater than 0.1% mercury by weight after January 1, 2019; that lead and mercury wheel weights collected be properly recycled; and that violators of the bill be warned of their violation and subject to a civil fine not to exceed $1,000 for each offense that continues a year after the warning. The bill would take effect on October 1, 2017.
Products that Contain Mercury – Prohibition on Sale of Electric Switches, Electric Relays, and Gas Valve Switches
House Bill 504, cross-filed with Senate Bill 713, prohibits the sale or provision of electric switches, electric relays, or gas valves containing mercury unless such products are sold or provided as replacement parts for certain qualified larger products. Exceptions exist for electric switches, electric relays, and gas valve switches that were sold or provided to replace a switch or a relay that is part of a larger product in use on or before October 2010 if the larger product is used in manufacturing; the larger product is used in a generating, transmission, or distributing facility for electric energy, gas, or water; the switch or relay is integrated into the components of the larger product; or federal law or regulation requires the use of the switch or relay. The bill would take effect on October 1, 2017.
On-site Sewage Disposal Systems: BAT for Nitrogen Removal
House Bill 281 would reinstate requirements to utilize best available technology (BAT) for nitrogen removal when newly installing a septic system. Regulations adopted by Maryland Department of the Environment (MDE) in 2012 extended areas requiring BAT to include the Chesapeake Bay watershed, Atlantic Coastal Bay watershed, and the watershed of any nitrogen-impaired water body. Under a 2016 change in policy, MDE narrowed the requirements, making utilization of BAT for new construction mandatory primarily in the Chesapeake and Atlantic Coastal Bays Critical Area. To buffer the impact of the expanded BAT requirements, the legislation would require MDE to use the Bay Restoration Fund (BRF) to help homeowners with the higher costs of using BAT. The bill would take effect on October 1, 2017.
Keep Antibiotics Effective Act of 2017
House Bill 602, cross-filed with Senate Bill 422, would limit the use of antibiotics on industrial farm operations. It is intended to curb antibiotics resistance and supplement existing FDA guidance, which recommend oversight by or consultation with veterinarians for the use of medically important antimicrobial drugs, and a voluntary narrowing of the labeled uses of such drugs.
The bill requires certain cattle, swine, or poultry owners who administer or authorize administration of medically important antimicrobial drugs to have either (1) a medically important microbial drug prescription, or (2) a veterinary feed directive. Owners would also need to report annually to the Maryland Department of Agriculture regarding administered drugs and accompanying prescriptions or feed directives. Violations would be subject to penalty of up to $2,000. The bill would take effect on October 1, 2017.
Two competing legislative proposals have been introduced that would either ban or delay hydraulic fracturing in Maryland. The present moratorium on hydraulic fracturing expires October 1, 2017. House Bill 1325, cross-filed with Senate Bill 740, would ban engagement in hydraulic fracturing for oil and natural gas exploration or production. The bill would take effect on October 1, 2017.
In contrast, Senate Bill 862 would establish a two-year moratorium on hydraulic fracturing, and direct MDE to conduct additional study and identify state regulations less protective than Maryland’s Marcellus Shale Safe Drilling Initiative Advisory Commission “best practices” that were part of a December 19, 2014 Final Report prepared for former Governor O’Malley. MDE must also consider findings of other relevant studies. MDE’s study must be compiled by July 1, 2018 and MDE must propose new regulations based on its study by October 1, 2018. Local referenda at the 2018 gubernatorial election would determine whether local jurisdictions may authorize hydraulic fracturing. MDE could begin issuing permits to use hydraulic fracturing in authorizing jurisdictions in October 2019. The bill would take effect on July 1, 2017.
Solid Waste and Recycling Facilities
House Bill 124 would require MDE to adopt regulations clarifying when recycled materials are “solid waste” and when a recycling facility requires a refuse disposal permit. MDE would convene a workgroup of affected stakeholders when developing the regulations. If you are a potential stakeholder, this is a process to monitor. The bill would take effect on October 1, 2017.
Polystyrene Food Service Products and Polystyrene Loose Fill Packaging - Prohibition on Sale
House Bill 229, cross-filed with Senate Bill 186, would follow a national trend cited in its fiscal and policy note:
“More than 80 jurisdictions across the country have introduced legislation to ban or partially ban the use of expanded polystyrene foam, including Montgomery and Prince George’s counties in Maryland; Washington, DC; Minneapolis, Minnesota; Portland, Oregon; and Los Angeles County and the City of San Francisco in California. The ban in Washington, DC, includes a ban on the plastic foam products in restaurants and businesses; the ban took effect January 1, 2016, and applies to all businesses and organizations that serve food.”
The bill would prohibit, starting January 1, 2018, sale and use in the food service business of “expanded polystyrene food service product” and certain other packaging and would allow waivers for undue hardship or practical difficulty that is not generally applicable to other food service businesses in similar circumstances. MDE would develop regulations and conduct an education and outreach campaign, but enforcement would be by county health departments. The bill would take effect on July 1, 2017.
Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution, helping clients around the world resolve critical environmental and sustainability issues, relating to their products and facilities. For more information about the issues discussed in this article, please contact the authors.