The Maryland Department of the Environment (MDE) proposed hazardous substance reporting obligations on Friday, October 31, 2014.  These regulations would implement Environment Article §7-222(d), amended in 2008, requiring reporting to MDE “immediately” of certain information that “indicates the release of a hazardous substance into the environment” above a "threshold."  The law became effective as of October 1, 2009, but without implementing regulations the law has not been enforceable.  The proposed regulations would provide reporting threshold levels, further construe when reporting is triggered, and establish reporting procedures. 

If you own or lease property and have environmental data regarding it, the proposed regulations may be pertinent to you.  The reporting thresholds (incorporated by reference in the proposed regulations) are based on conservative screening levels that cast a wide net, so they may trigger reporting of conditions that some environmental professions (and ultimately MDE) may view as insignificant.  As stated in the proposal, reporting “thresholds do not necessarily indicate a risk to public health or the environment.”  

Once a report is made, MDE may request further evaluation or remediation of the site conditions.  Site information will be publicly available.  Completion of the assessment and review process may take some time.  Advance planning for these reporting requirements will be important to minimize disruption of businesses and transactions, and to facilitate risk management. 

Like the law, the proposed regulations require any “responsible person” to immediately report indications of a release of hazardous substances at a property.  Sample results or environmental assessments are likely sources of reportable information, and indications that may trigger reporting include: 

• identification of a contaminant at or above a reporting threshold;

• detection of the existence of a hazardous substance underground as a free-product, hazardous waste material disposed of without a permit, or an abandoned container, tank, or engineered structure with residual amounts of a hazardous substance; or

• unpermitted disposal of industrial waste .

Upon reporting, MDE plans to assess the potential risks from the release and to issue a No Further Action letter or a request for some action (such as assessment and/or remediation).   

Reporting is required for “Responsible Persons.”   A “responsible person” who must report is defined by law, and includes current and certain former owners and operators of sites, as well as certain arrangers and transporters of hazardous substances.  Environment Article, §7-201, Annotated Code of Maryland.  The definition of “responsible person” excludes certain lenders and fiduciaries, and also persons who can show that they are bona fide prospective purchasers who fulfilled all requirements to obtain and keep that status. 

Immediate Reporting:  The law requires immediate reporting, and the regulations construe this to mean “as soon as practicable” while also establishing deadlines of 30 days after the effective date of the regulations or 15 days after discovery that the reporting criteria have been met. The rule also allows a 30 day reporting window in connection with data collected or performed before October 1, 2009.   MDE prepared a form to be used for reporting, but the regulations provide for reporting “to the extent it is known or can be determined”. . .  “any other information requested by [MDE]”

Reporting of Prior Assessments:  One area of uncertainty is when, as a practical matter, an entity is required to search for or obtain historic information.  In the preamble’s evaluation of the proposal’s economic impact, MDE states that “the proposed regulations do not require that potentially responsible persons search their records to determine if they possess information that must be reported.”  At the same time, the regulations encompass information obtained prior to 2009.   

Reporting Thresholds:  The reporting thresholds for contaminants in environmental media (soil, sediments, groundwater and indoor air) are not published in full in the regulation.   Instead, MDE states that the document containing the thresholds is generally available to the public and as such may be incorporated by reference. The thresholds are set out in MDE’s “Hazardous Substance Notification Standards:  Guidance for the Hazardous Substance Reporting Notification Regulations (June 2014).”   

Naturally Occurring Hazardous Substances:  When naturally occurring levels of hazardous substances trigger reporting, the report should include this information for MDE’s consideration. 

Exclusions from Reporting:  The regulations exclude from reporting a variety of lawful uses of hazardous substances, such as use of pesticides and fertilizers applied in accordance with label instructions.  Also excluded are previously reported releases and releases that are permitted or otherwise authorized under law.  These exclusions are itemized more fully in the proposed regulation.  

The public comment period for this rule runs through December 1, 2014.