[author: Randall M. Lutz]

On December 4, 2012, the Maryland Department of the Environment ("MDE") held a stakeholders meeting to obtain preliminary comments on MDE's new draft proposed regulations. These regulations will require "responsible persons" (mostly current and past property owners) to immediately report to MDE any information in their possession indicating hazardous substances exist or were released on the property at any time in the past in soils or water in concentrations greater than the MDE threshold for that substance. Along with the disclosure, the responsible person must submit on an MDE form detailed information listing the sample results, the historic and current operations at the property, the names of the owners, proximity to human receptors to the release, summary of actions taken to investigate or remediate, effects of the release, and copies of the reports, among other information. Residential properties are not exempt.

Filling out the form requires in many cases professional help to answer the questions, especially those regarding the proximity to human receptors, and the effects of the release, which need technical expertise and, in some cases, legal liability analysis. MDE will then take the information and decide whether the responsible person needs to (1) investigate further, (2) plan and conduct remediation, or (3) do no further action. It could get very expensive. The regulations require "immediate" reporting, defined as no later than 30 days after the regulations become effective, or 15 days after discovery if after the initial 30-day period. The test results or information do not have to be in the person's physical possession. If the responsible person has knowledge of the existence of tests with results in excess of MDE thresholds, that is defined as possession.

If adopted, these will be the most stringent hazardous substance reporting requirements in the country. It is expected that the regulations will not become final until sometime in 2013 after the legislative session ends. That means there still remains a final opportunity to try to amend the statute in the upcoming 2013 General Assembly. The draft regulations and the thresholds can be found at http://tinyurl.com/c698x9h. For further information please contact Randy Lutz at 410-332-8614, or at rlutz@saul.com.

View Documents here.