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MDE Preparing to Publish New Environmental Reporting Regulations

In 2008, the Maryland General Assembly passed a law instructing the Maryland Department of the Environment (MDE) to develop regulations requiring property owners and others to disclose environmental sampling results to the State. We have now reviewed the draft regulations, which will be published later this month, and can confirm that the draft drastically changes the obligations of Maryland companies and individuals to report sample results to MDE. Here are answers to what we anticipate to be the most common questions:

How do I know whether a sample result must be reported?

You are required to report sample results under three circumstances: (1) a sample result exceeds the screening levels of Maryland’s voluntary cleanup program; or (2) the sample results show a “hazardous substance” (as defined in the regulations) which is floating as “free product” in groundwater, is in excess or reportable quantities under federal law, was disposed without a permit or is in an abandoned container; or (3) unpermitted disposal of industrial waste has occurred on the site.

MDE’s voluntary cleanup screening standards are very low. We anticipate that many Phase IIs and other sampling reports will show at least some sample results that exceed those numbers and therefore may need to be turned over to the State.

How do I know that I am the person required to submit the report?

The law applies to “responsible persons.” Responsible person is a complicated legal term that has been the subject of much litigation, but for most sites this will usually mean an owner or operator of the property where the sample was taken. However, the obligation is not limited to current owners. A prior owner or operator who has retained a copy of a sampling result meeting the criteria may be required to report the result to MDE.

It does not matter whether the owner or operator performed the test; the only issue is whether the owner or operator is in possession of the results. So, for example, a prospective purchaser who conducts sampling would not necessarily be required to report it to MDE unless or until the prospective purchaser acquired title. However, if that purchaser provides the current owner a copy of the results, the current owner likely will be required to submit it.

Am I required to disclose old reports?

Yes. The regulations do not include any “grandfathering” for prior sample results, and reports will be due immediately regardless of how long ago they were taken as long as you still possess the results. So, for example, a soil sample result from 1980 that a responsible person currently has in his or her possession must be disclosed. In fact, reporting is required even if the responsible person no longer owns the property.

When is reporting required?

Responsible persons are required to file a report upon the earlier of: (1) 48 hours after discovery that the criteria requiring reporting have been met, or (2) October 1, 2009 if the sample result was obtained before that date. We assume that MDE will change the October 1st date since it has already passed.

Are there any exemptions?

Yes, but they are limited and not likely to help most businesses. The regulations do not require reporting of properly-applied pesticides and fertilizers, de minimus residential use of hazardous substances, releases previously reported to MDE or the EPA, or oil releases already subject to other provisions of MDE regulations.

Is any provision made for naturally occurring substances?

Yes, but again it is limited and discretionary with MDE. The regulations say that MDE “may” exempt “metallic constituents” if MDE determines that the concentration “is a naturally occurring background concentration.” This may be a frequent problem. Arsenic, for example, naturally occurs in the Baltimore region at levels that exceed MDE’s screening levels.

If I am required to file a report, how is it submitted to MDE?

The regulations provide that MDE will create a form, but it is not included within the regulations. The form will require information regarding property location, the materials triggering the reporting obligation, a summary of historic and current operational activities, proximity to humans, and details regarding the impact of the release including on soil sediment, groundwater, surface water, and indoor air.

What are the threshold levels and how is the appropriate level determined? Does the property’s current use determine the appropriate level?

Reporting thresholds are the existing MDE screening standards – which have previously existed solely as guidance. Those thresholds differ for residential and non-residential property but the current use of the property does not determine the appropriate standard. For example, the residential soil screening levels will apply to any site which is zoned for residential use, or is not otherwise restricted from being used for residential purposes. So even if the site is currently being used for commercial or industrial purposes, the fact that there is no legal restriction on residential use means that the residential standard applies.

After reporting occurs, how will MDE respond?

The regulations do not specify how MDE will respond or how quickly. There has been some discussion that where MDE determines that the reported release does not represent a risk to public health or the environment, a No Further Action letter will be provided. However, no deadline is set for issuance of such a letter. If an NFA is not appropriate, the assumption is that MDE will compel participation in either the Voluntary Cleanup Program or the Controlled Hazardous Substance program.

Is it too late to challenge these regulations?

No, the regulations are only proposed, and are expected to be made available for public comment between October 23, 2009 and November 23, 2009. During this period interested parties will have the opportunity to submit comments to MDE prior to the finalization of the regulations. We expect to provide comments on behalf of clients before the regulations are finalized.

If you have questions regarding Maryland’s new Environmental Reporting Regulations, the Gordon, Feinblatt Environmental and Energy Practice and Government Relations Group is ready to help you.