# COMAR Title 14 — Independent Agencies

## Subtitle 14 — Hazardous Waste Facilities Siting Board

### Chapter 01 — General Administrative Procedures

**Authority:** Natural Resources Article,§3-704, Annotated Code of Maryland

**Administrative History:** Effective date: May 29, 1981 (8:11 Md. R. 976)

**Administrative History:** Regulation .03 amended and regulations .05 and .06 adopted effective November 8, 1982 (9:22 Md. R. 2198)

#### Regulation .01 Definitions.

*COMAR 14.14.01.01*

A. The following terms have the meanings indicated.

B. Terms Defined.

  (1) “Act” means the Hazardous Waste Facilities Siting Program Act, Title 3, Subtitle 7 of the Natural Resources Article, Annotated Code of Maryland (Laws of 1980, Ch. 528).

  (2) “Applicant” means a person, partnership, corporation, association, governmental body, or other entity that submits an application.

  (3) “Application” means a written request for a certificate of public necessity from the Board submitted in accordance with these regulations.

  (4) “Board” means the Hazardous Waste Facilities Siting Board.

  (5) “Certificate” means a certificate of public necessity issued by the Board.

  (6) “Department” means, unless otherwise indicated, the Maryland Department of Health, or any other successor State agency with primary regulatory responsibility over hazardous waste.

  (7) “Facility” means any structure, equipment, machinery, bins, tanks, pipes, pumps, conveyors, wells, trenches, pits, or cells used for treatment, processing, reconditioning, exchange, incidental storage in connection with the preceding activities, long-term storage, or ultimate disposal of hazardous waste.

  (8) “Hazardous waste” means any waste substance or material designated as a hazardous substance pursuant to Natural Resources Article, §8-1413.2, Annotated Code of Maryland, and COMAR Title 10, Subtitle 51, as amended.

  (9) “Permit” means any regulatory permit that may be required of the applicant by any State or federal regulatory agency. This includes a facility permit required by the Department, any permit for emissions of air, water, noise, or other pollutants required by the Department or the United States Environmental Protection Agency, or a floodplain or stream diversion permit required by the Department of Natural Resources, as the case may be.

  (10) “Secretary” means Secretary to the Board.

  (11) “Service” means the Maryland Environmental Service.

  (12) “Site” means the geographic area to be occupied by a facility, including buffer or security areas and areas used for any appurtenant functions.

  (13) “Subdivision” means the 23 counties or Baltimore City and other incorporated municipalities.

#### Regulation .02 Statutory References.

*COMAR 14.14.01.02*

A. “Administrative Procedure Act” means Article 41, §§244—256, Annotated Code of Maryland, as amended.

B. “Public Information Act” means Article 76A, Annotated Code of Maryland, as amended.

#### Regulation .03 General Procedures.

*COMAR 14.14.01.03*

A. The Board may adopt standing rules governing details of the conduct of business by the Board. Standing rules may be suspended for the duration of a meeting by majority vote of those present. Proceedings shall be governed by Roberts Rules of Order, Revised, except as otherwise provided by these regulations, by law, or by standing rules of the Board.

B. Absence of Chairman.

  (1) The Chairman may appoint a member of the Board to preside in his or her absence.

  (2) When the Chairman has not appointed a presiding officer to serve in his or her absence, the Board will elect a Chairman pro tem to serve until the Chairman returns.

  (3) In case of extended absence of the Chairman, that fact will be brought to the Governor's attention.

C. Attendance.

  (1) Regular attendance at meetings is required of all members.

  (2) Members are expected to notify the Chairman or Secretary when they are unable to attend.

  (3) When excessive or recurrent absence of one or more members impedes the effectiveness of the Board, it shall discuss the matter of absence in closed session. The Board may recommend to the Governor the relief of a member for excessive or recurrent absence and the appointment of a successor.

D. Regular Meetings.

  (1) Regular meetings of the Board shall take place at a regular time and place determined by the Board.

  (2) A schedule of the regular meetings shall be maintained by the Secretary and published in the Maryland Register at least 15 calendar days in advance.

  (3) Notice of meetings and an agenda shall be mailed in advance of the meeting to any person who so requests the Secretary in writing.

  (4) The business of a regular meeting shall be published in the agenda insofar as practicable. Business not included in the published agenda may be added when allowed by law. The agenda shall be prepared by the Secretary and approved by the Chairman.

E. Special Meetings.

  (1) A special meeting is one convened at a time different from any regular meeting to consider item or items of business as specified in the notice. Business shall be limited to that specified in the notice.

  (2) A special meeting may be convened at the call of the Chairman or at the request of three members.

  (3) Notice and an agenda of special meetings will be mailed as far in advance of the meeting as practicable to any person who so requests of the Secretary in writing.

F. Minutes.

  (1) The Secretary shall keep written minutes of all meetings. The minutes shall record the nature of each item of business, action taken, and any recorded vote.

  (2) Unless a stenographic record is made and transcribed, minutes need not record discussion.

  (3) Motions and resolutions shall be submitted in writing to the Secretary or shall be recorded in writing by the Secretary before the question is stated by the Chairman.

G. Meetings Generally Open to the Public.

  (1) It shall be the policy of the Board that meetings be conducted in an open and public manner.

  (2) The Board may meet in closed session as authorized by law. The reason for the closed session shall be stated in the minutes.

#### Regulation .04 Public Hearings Held Other than to Consider Applicants.

*COMAR 14.14.01.04*

A. All public hearings, other than those held to consider applications, will be held at a location or locations directed by the Board.

B. Notice will be published in the Maryland Register at least 15 calendar days in advance.

C. Notice by ordinary mailing will be given to any person who has requested to receive notice of Board meetings.

D. The Chairman may preside over the hearing or may designate another Board member or other person as hearing officer.

E. The Board may establish procedural rules governing the conduct of hearings, consolidation of hearings, ceding of time, time limits, and other such matters as the Board finds appropriate.

#### Regulation .05 Public Records.

*COMAR 14.14.01.05*

A. General. All records of the Board are subject to inspection and copying as provided in the Public Information Act, Article 76A,§1-5A, Annotated Code of Maryland. It is the policy of the Board to facilitate public access to the records of the Board, when access is allowed by law, by minimizing costs and time delays to persons requesting information.

B. Definitions.

  (1) “Custodian” means an authorized person employed by the Board having personal custody and control of public records of the Board.

  (2) “Information requester” means a person requesting disclosure of public records.

  (3) “Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Board. Unless otherwise provided by law, the Secretary is the official custodian of the Board's records.

  (4) “Public records” means all paper, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, maps, drawings, or other written documents, regardless of physical form or characteristics. “Public records” includes all copies made or received by the Board in connection with the transaction of public business and includes the salaries of all employees of the Board.

  (5) “Working day” means a day other than a Saturday, Sunday, or a State holiday.

  (6) “Written documents” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, and other documentary materials, regardless of physical form or characteristics.

C. Who May Request. Any person may request to inspect or copy public records of the Board.

D. Necessity for Written Request.

  (1) Inspections.

    (a) Except as otherwise provided in this regulation, the custodian shall generally make public records available for inspection by an information requester without demanding a written request.

    (b) The custodian shall require a written request if the custodian reasonably believes that the Public Information Act or any other law may prevent the disclosure of the record to the information requester or that a written request will materially assist the Board in responding to the request.

  (2) Copies. If the information requester is requesting a copy of any public record, the custodian may require a written request by the information requester.

E. Contents of Written Request. A written request shall:

  (1) Contain the information requester's name and address;

  (2) Be signed by the information requester; and

  (3) Reasonably identify by brief description the record sought.

F. Filing Written Request. A written request shall be addressed to the custodian of the record. If the custodian is unknown to the information requester, the request may be addressed to the Secretary.

G. Response to Written Request.

  (1) If the custodian decides to grant a written request for inspection, he shall produce the record for inspection immediately or within a reasonable period, not to exceed 30 days from the date of the request where the period of time is needed to retrieve the information.

  (2) If the custodian decides to deny the written request, he shall do so within 30 days of the written request and, immediately upon deciding to deny the request, notify the information requester of the denial.

  (3) If a requested public record is not in the custody or control of the person to whom written request is made, that person shall, within 10 working days of the receipt of the request, notify the information requester. If that person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the information requester.

  (4) With the consent of the information requester, any time limit imposed by §G(1)—(3) above, may be extended for an additional period not to exceed 30 days.

H. Notification of Persons Who May be Affected by Disclosure. Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a record to the information requester that a request for inspection or copying of the record has been made. The custodian may consider the views of that person before deciding whether to disclose the record to the information requester.

I. Records Temporarily Unavailable. If a requested public record is in the custody and control of the person to whom written request is made but is not immediately available for inspection or copying, the custodian shall, within 10 working days of the receipt of the request, notify the information requester and set a date and hour within a reasonable time for inspection or copying.

J. Records Destroyed or Lost. If a requested record has been destroyed or lost, the custodian to whom the request is made shall, within 10 working days of the request, notify the information requester of this fact and explain in the response the reasons why the record cannot be produced.

K. Review of the Denial.

  (1) If a written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the information requester may, within 30 days after receipt of the notice of the denial, request an administrative hearing.

  (2) If the information requester requests a hearing, the hearing shall be conducted by a hearing officer designated by the Chairman and the hearing shall be governed by the Administrative Procedure Act,§251—254, Annotated Code of Maryland. After the hearing, the hearing officer shall prepare a recommended decision for the Board. The Chairman shall issue the final decision of the Board.

  (3) If the hearing results in a total or partial denial of the written request, the information requester may file an appropriate action in the circuit court under§5 of the Public Information Act.

  (4) If the information requester chooses not to request a hearing under§K(1), above, the information requester may file an action for judicial enforcement under§5 of the Public Information Act without exhausting that administrative remedy.

L. Disclosure Against Public Interest. If, in the opinion of the Board disclosure of any public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Chairman may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate circuit court for an order permitting continued denial or restriction of access. Notice of the application filed with the circuit court shall be served on the information requester in the same manner that is provided for service of process by the Maryland Rules of Procedure.

M. Fees.

  (1) The fee schedule for copying and certifying copies of records is as follows:

    (a) Copies. The fee for each copy is 15 cents per page if reproduction is made by a photocopying machine within the Board's offices. If records are not susceptible to photocopying (for example, punch cards, magnetic tapes, blueprints, and microfilm), the fee for copies will be based on the actual cost of reproduction.

    (b) Certification of Copies. If a person requests that a copy of a record be certified as a true copy, an additional fee of $1 per page shall be charged.

    (c) Minimum Fee Charged. A charge will not be made if the total amount of the fee is $1 or less.

  (2) Notwithstanding §M(1), above, if the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Public Information Act or this regulation, the prescribed fee shall be charged.

  (3) If the custodian is unable to copy a record within the Board's offices, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Board's offices. The custodian shall either collect from the information requester a fee to cover the actual cost of reproduction or direct the information requester to pay the cost of reproduction directly to the facility making the copy.

  (4) Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the information requester to pay the cost or demand prepayment of any estimated fee before reproducing the record.

  (5) Except as provided in §M(6), below, the Secretary may charge reasonable fees for official or employee time expended searching for requested records or for any time expended preparing records for inspection and copying.

  (6) The Secretary may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information.

  (7) Upon request, the Secretary may waive or reduce any fee charged pursuant to this regulation if the custodian determines that the waiver or reduction is in the public interest. The Secretary shall consider, among other relevant factors, the ability of the information requester to pay the cost or fee.

  (8) If the information requester requests that copies be mailed or delivered to the information requester, the custodian may charge the information requester for the cost of postage or delivery to the information requester.

N. Time of Inspection. An information requester may inspect any public record that he is entitled to inspect during the normal working hours of the Board.

O. Place of Inspection. The place of inspection shall be the place where the document is located unless the custodian, after taking into account the information requester's expressed wish, determines that another place of inspection is more suitable and convenient.

#### Regulation .06 Petitions for Adoption, Amendment, or Repeal of Regulations.

*COMAR 14.14.01.06*

A. General. These regulations set out procedures for interested persons to petition the Board for the promulgation, amendment, or repeal of regulations over which the Board has authority.

B. Definitions.

  (1) “Petition” means a petition to promulgate, amend, or repeal a regulation.

  (2) “Regulation” means rule as defined in the Administrative Procedure Act, Article 41,§244(b), Annotated Code of Maryland.

C. Who May File. Any person may file a petition requesting the promulgation, amendment, or repeal of any regulation over which the Board has rule-making authority.

D. Form. The petition may be in the form of a letter or any other written form desired by the petitioner. It shall include a detailed description of the new, amended, or existing regulation which the petitioner seeks to have the Board promulgate, amend, or repeal and a statement of reasons and other information in support of the petition. It shall also include the name, address, and telephone number of the petitioner.

E. The petition should be addressed to the Secretary, Hazardous Waste Facilities Siting Board, 60 West Street, Annapolis, Maryland 21401. Petitions will be considered submitted upon receipt in the office of the Secretary.

F. Disposition. Within 60 days after receipt of the petition, the Board will either deny the petition, stating the reasons for denial, or initiate rulemaking proceedings.

G. Reasons for Denial of a Petition. The Board may deny a petition to promulgate, amend, or repeal a regulation, for any reason permitted by law, including, but not limited to:

  (1) That the Board does not have the authority to grant the petition;

  (2) That the Board does not have adequate information or resources to evaluate the petition;

  (3) That the Board does not have adequate resources to implement the requested regulation if it is adopted;

  (4) That the Board previously adopted a regulation dealing with the same subject matter as that of the petition and rejected the position taken by the petitioner at that time, or the petitioner unreasonably failed to make his position known at that time; or

  (5) That, in the legal discretion of the Board, the requested regulation change is contrary to or inconsistent with Board policy.

H. Rulemaking Proceedings.

  (1) Rulemaking proceedings may include any type of action which the Board is authorized or required by law to take when promulgating, amending, or repealing regulations, including:

    (a) Conducting studies (either before or after proposal of the regulation in the Maryland Register) to gather information in support of the regulation;

    (b) Advance notice of proposed rulemaking if the Board determines that additional information or public comment is necessary or desirable before a proposed regulation can be formulated;

    (c) Referral (either before or after proposal of the regulation in the Maryland Register) to advisory councils or other official or quasi-official agencies or groups responsible for reviewing the regulation;

    (d) Proposal of the regulation in the Maryland Register;

    (e) Reproposal of the regulation proposed in the Maryland Register if the Board determines that, before final adoption, the proposed regulation must be altered so that it is substantially different from its original text;

    (f) Modification of the regulation change requested by the petitioner, either in form or substance, and either before or after proposal in the Maryland Register, to better reflect the Board's responsibilities, than reflected by the petitioner's request.

  (2) Despite the initiation of rulemaking proceedings, the Board may decide not to finally promulgate, amend, or repeal the requested regulation.

I. Notice to the Petitioner and Other Persons. The Board shall send written notices to the petitioner and any other person requesting notification in accordance with this section, as follows:

  (1) If the petition is denied, notice of the denial (including the reasons for the denial) shall be sent within 60 days of receipt of the petition.

  (2) When the requested (or modified) regulation appears in the Maryland Register, notice of this event will be sent at the time of the appearance in the Maryland Register.

  (3) When the Board finally disposes of the requested regulation (final promulgation, amendment, repeal, or a decision to discontinue the rulemaking), notice will be sent at this time. If the final disposition is a decision to discontinue the rulemaking, the notice will include a statement of the reasons for the discontinuance.

### Chapter 02 — Determination of Need for a Facility and Suitability of a Site

**Authority:** Natural Resources Article,§3-704, Annotated Code of Maryland

**Administrative History:** Effective date: May 29, 1981 (8:11 Md. R. 976)

#### Regulation .01 Determination of Need.

*COMAR 14.14.02.01*

A. The Board shall periodically make a determination of the Statewide or regional need for a certain type of facility. The types and quantities, both current and projected, of hazardous waste generated in the State shall be estimated and the means available for their safe treatment, storage, and disposal determined. The Board may also determine the desirability of public or private ownership for a particular type of facility.

B. Following this determination of need, the Board may adopt a policy concerning the need for a certain type of facility. This adopted policy shall constitute a conclusive determination and is not subject to adjudication in other administrative proceedings of the Board.

C. In its sole discretion, the Board may decide to consider applications only for facilities which are consistent with its adopted policy or policies. Upon determination that there exists a need for a particular type of facility, the Board shall publish this need to the public in the Maryland Register and solicit applications for this facility.

D. Before adoption of a need policy, the Board shall hold a public hearing or hearings conducted in accordance with COMAR 14.14.01.04. In advance of the hearing or hearings, the Board may make available for inspection or copying, any plans, surveys, reports, or studies made at the Board's direction which are relevant to the proceeding.

E. The Department shall be consulted in preparation of plans and surveys for determination of need. Plans and surveys so prepared shall be provided to the Department for inclusion in the Statewide solid waste management plan required by the Resource Conservation and Recovery Act of 1976.

#### Regulation .02 Determination of Suitability.

*COMAR 14.14.02.02*

A. The Board may consolidate consideration of applications which are in competition for the same sites or which are intended to fulfill the same need identified by Board policy. The applications may be evaluated comparatively to determine the most suitable site or sites and facility or facilities.

B. The Board shall consider, as required by law, environmental, social, technical, and economic factors as they apply to a particular site. The Board will deny certification if any of these factors would create an unacceptable impact on public health, safety, or the quality of the environment.

C. Issuance of a certificate does not convey authorization to build or operate a facility. The design, construction, and operation of a facility and the associated transportation of hazardous waste to and from the facility remain subject to all environmental, health, and safety restrictions that may be imposed by State or federal regulatory agencies under applicable law and regulation. The Board will coordinate its activities with those agencies having authority over hazardous waste. Requirements for the submission of information, technical determinations, or any other appropriate matter will be coordinated so as to avoid duplication and the possibility of inconsistent regulatory decisions. As set forth in these regulations, this may include deferring consideration of certain disputed issues of fact involving technical matters to those regulatory agencies with a particular expertise in them (with the consent of the agency). If the Board relies on or requires certain premises or conditions before it will issue a certificate, and these premises or conditions change as a result of the imposition of permit conditions by other regulatory agencies, the Board may, in its sole discretion, revoke or amend the certificate as appropriate.

### Chapter 03 — Procedure for Application, Evaluation, and Issuance of Certificates

**Authority:** Natural Resources Article,§3-704; Article 41,§248; Article 76A, §2(a), Annotated Code of Maryland

**Administrative History:** Effective date: May 29, 1981 (8:11 Md. R. 976)

**Administrative History:** Regulation .01C and D amended effective December 7, 1981 (8:24 Md. R. 1937)

**Administrative History:** Regulation .01C amended effective September 26, 1983 (10:19 Md. R. 1691)

**Administrative History:** Regulation .02 amended effective November 8, 1982 (9:22 Md. R. 2198)

#### Regulation .01 Application Procedure.

*COMAR 14.14.03.01*

A. Before submission of an application, a potential applicant may be requested to:

  (1) Attend a preliminary conference with the Secretary to obtain information concerning the Board's procedures, guidelines, policies, and scheduling regarding submission of applications; and

  (2) Have first applied for any regulatory permits required and to have progressed at least through evaluation of preliminary design concepts in pursuit of these permits.

B. Dates When Applications Are to Be Accepted.

  (1) The Board shall specify dates when applications will be accepted.

  (2) The Board may declare closed periods in which applications may not be accepted when:

    (a) Studies are underway which have been directed by the Board, or which are being conducted by another source and which promise to materially improve the Board's capability to conduct an adequate review;

    (b) The Board has directed the Service to submit an application;

    (c) The Board is in the process of obtaining the resources necessary to conduct an adequate review.

  (3) All dates governing submission of applications will be established by action of the Board in open session and published in the Maryland Register.

C. Schedule of Fees.

  (1) The fee for processing an application for a certificate of public necessity shall consist of two parts, an initial application fee and a processing fee.

  (2) The initial application fee for all applications shall be $10,000, to be paid by certified check. This fee shall cover the cost of initial review of an application. The initial application fee is not refundable.

  (3) As part of the determination of completeness of an application, the Board will determine, in its sole discretion, the costs of evaluation and processing of the application. The estimated cost shall include the cost of additional staff, if any, consultants, hearing officer, reporter and transcripts, transportation, witnesses called by the Board, meeting places and associated expenses, and other costs which are attributable directly to the evaluation and processing of the application. The sum of these estimated costs shall constitute the processing fee to be paid by the applicant.

  (4) Once determined and paid by the applicant, the processing fee is not subject to increase or decrease, except that if processing of an application is terminated before the start of any services which formed part of the fee calculation, that portion of the fee shall be refunded to the applicant. For any processing partially or fully undertaken, there shall be no refund of the fee.

D. Submission and Evaluation of Application.

  (1) The applicant shall submit 50 copies of the application to the Secretary.

  (2) The initial application fee shall accompany the application. An initial application will not be reviewed until the full initial fee has been received.

  (3) The Secretary will promptly acknowledge, by certified mail, the receipt of any application. Notice of receipt, however, does not signify any decision regarding the completeness of the application.

  (4) The Secretary shall transmit five copies of the application to the Department as an application for a facility permit. Transmittal by the Board does not signify completeness of the application or relieve the applicant of any additional or subsequent requirements by the Department or any other regulatory agency.

  (5) The Board may conduct working sessions with an applicant, in either open or closed session (depending on whether confidential information will be discussed, or otherwise as law permits) to further its review of the completeness of the application.

  (6) The Board shall determine in its sole discretion the completeness of any application.

  (7) The Board, upon a determination of completeness, shall:

    (a) Advise the applicant of the amount of the processing fee. The determination of completeness will not be submitted for publication in the Maryland Register in accordance with§D(7)(b) until the Board has received from the applicant the full processing fee.

    (b) Announce the determination by publication in the Maryland Register. The date of publication commences the 6-month processing time for consideration of applications required by the Act.

    (c) The Secretary shall mail copies of the application to recipients designated by law and as directed by the Board.

E. The Board may discontinue consideration of a completed application at any time if it determines that:

  (1) The application contains materially false information;

  (2) A State or federal regulatory agency has denied a required permit or the Board has reason to believe that a required permit cannot be obtained;

  (3) The Board amends its adopted policy as to the need for any type of facility; or

  (4) There exists any changed circumstance regarding representations made in the application concerning ownership of the facility, financial responsibility, site design, or any other material fact.

F. Applications for changes in certified sites and facilities shall be processed by the Board under the same requirements, procedures, and restrictions as for an initial application.

#### Regulation .02 Content of Application.

*COMAR 14.14.03.02*

A. Applicant's Burden of Production. An applicant shall have the burden of setting forth in the application the information described in this regulation and all other factual, technical, or expert information which the applicant wishes the Board to consider in acting on the application. In addition, an applicant shall have the burden of setting forth in the application each inference or conclusion which the applicant is asking the Board to make in determining to issue a certificate of public necessity in accordance with the Natural Resources Article, §§3-702 and 3-705, Annotated Code of Maryland, and shall have the burden of relating in the application the informational basis for each inference or conclusion. The Board will not determine an application to be complete unless and until the applicant has met these burdens.

B. Format.

  (1) Each application shall contain a letter of intent signed by a person with the authority to obligate the firm or other entity submitting the application. The letter shall state the purpose of the application and shall reference supporting information. The applicant shall submit the application to the Board in care of the Secretary.

  (2) The letter of intent shall be supported and accompanied by any forms required by the Board and supplemental reports or other materials which shall contain information of the type, quality, and detail that will permit adequate consideration of the application by the Board. The supporting reports and any supplemental information submitted shall be considered an integral part of the application.

  (3) Each application shall contain a summary of the proposed site and facility. The summary shall include a factual description of the site, the facility and the treatment, disposal, or recovery process proposed and shall highlight any major risks to the environment and public health or safety associated with the proposal and describe the methods proposed to eliminate or reduce those risks. The applicant shall highlight in the summary the conclusions and inferences the applicant is asking the Board to make in accordance with §A.

C. Supporting Reports and Other Information.

  (1) Each application shall include an ownership report which contains the following information:

    (a) Legal description of applicant, including identification of all principal participants, such as major shareholders, corporate officers, affiliated firms;

    (b) A current audited financial statement or statements of the applicant based upon an audit or audits by a certified public accountant including the accountant's opinions;

    (c) A description of all liability insurance or other type of liability coverage the applicant has or plans to obtain for the proposed site and facility and a description of the financial and managerial arrangements for closure and post-closure care of the facility and site;

    (d) A description of any other hazardous waste facilities operated or owned currently or in the past by the applicant with details of their compliance record.

  (2) Each application shall include a site-assessment report which contains a 7-1/2 minute series United States Geological Survey topographic map of the site vicinity and detailed information about the existing environmental, health, and community conditions surrounding the proposed site and facility. It shall describe any possible environmental, health, or community impacts which the proposed site and facility may cause, including descriptions of:

    (a) The geology and hydrology surrounding the site;

    (b) The surface and groundwater resources surrounding the site and facility and any positive or negative impacts the site and facility may have on these resources along with a list of all local, State, or federal water or soil permits or approvals the facility will be required to have and the applicant's plans for compliance;

    (c) The ambient air quality surrounding the facility and site vicinity and any positive or negative impacts the site and facility may have on the surrounding air quality along with a list of any local, State, or federal air or noise permits or approvals the facility will be required to have and the applicant's plans for compliance;

    (d) Any other existing environmental features of the site vicinity and any impacts which the site or facility may have on those features and any other State, local, or federal health or environmental permits or approvals the facility will be required to have before construction or operation and the applicant's plans for compliance;

    (e) The surrounding land uses and affected communities and the existing local planning and zoning provisions;

    (f) The transportation routes and methods the customers of the facility will generally use and the existing and proposed State, local, and federal plans for repair, maintenance, and control of those routes and methods;

    (g) The volume of traffic the facility will generate and the traffic volume and accident records for the routes the customers will use;

    (h) Any community or environmental mitigation or compensation plans the applicant has;

    (i) Any known objections or endorsements by State and local governments and citizens in the site vicinity of the proposed facility.

  (3) The application shall include a facility and operation report which contains a detailed description and discussion of the mechanical, operational, and financial aspects of the facility and treatment, disposal, or recovery process including a discussion of:

    (a) The designed capability and capacity of the facility;

    (b) The types and amounts of wastes which will be accepted and their geographic origin;

    (c) The relationship of the applicant to the customers including a sample customer contract form;

    (d) The process or processes to be employed including its basic characteristics and principal limitations;

    (e) Any emission controls, liquid or gaseous discharges, and solid residues the facility will emit or discharge which were not discussed in the site-assessment report;

    (f) Normal operating procedures including waste acceptance requirements, compliance with the manifest system and other pertinent hazardous substances transportation laws and regulations, employee training, testing procedures and any company regulatory compliance monitoring;

    (g) The emergency prevention and control plans including a description of on-site equipment and trained personnel and existing or proposed nearby state or local equipment or personnel such as fire equipment or rescue squads;

    (h) Planned operational safeguards and monitoring of the facility following cessation of operation;

    (i) Cost effectiveness of the process.

D. Form of the Application.

  (1) The application should be contained in one or more three-ring loose leaf binders on preferably 8-1/2 x 11 inch paper.

  (2) All maps required by this regulation shall be detachable, but may be fold-outs.

  (3) The summary shall be capable of separate reproduction and distribution.

#### Regulation .03 Procedure for Issuing Certificate.

*COMAR 14.14.03.03*

A. The notice required by Regulation .01D(7) announcing that a completed application has been received shall contain a brief description of the applicant, site, and facility. It shall also indicate the date, time, and place of the information meeting between the applicant and interested members of the general public. It shall also indicate the possibility of a pre-hearing conference or further procedures as outlined in Regulation .04, below, if an adjudicatory hearing is to be convened. The notice shall advise that the completed application (including the applicant's summary) is available for inspection and copying at the office of the Secretary.

B. This notice shall appear in the Maryland Register and in one or more newspapers of general circulation in the affected county or counties. The cost of all legal notices shall be paid for by the applicant.

C. Any person (other than the applicant or person requesting an adjudicatory hearing pursuant to Regulation .04 below) desiring to make known to the Board other relevant facts concerning an application shall do so within 50 days of the public notice of the completed application. Failure to provide the Board with this information within the 50 day period will preclude its consideration by the Board, unless the Board determines that the information could not have been submitted during the 50-day period. The applicant shall have the opportunity to contest any such information.

D. Information Meeting with Applicant.

  (1) A meeting with interested members of the public shall be held in the county in which the proposed site is located at which the applicant will present and discuss its application. The information meeting is the first phase of the public participation process.

  (2) If the proposed site is located in two or more counties, the meeting will be held at a location reasonably convenient and accessible to citizens in all these counties.

  (3) Notice of the meeting shall be published in the Maryland Register and in one or more newspapers of general circulation in the affected county or counties and sent by ordinary mail to any person who has requested to receive notice of Board meetings. The costs of this notice shall be borne by the applicant.

  (4) The meeting will be conducted by the Secretary. The applicant will present its proposal and entertain questions.

E. An adjudicatory hearing may be held after the informational meeting, at times and dates specified by the Board. An adjudicatory hearing is to resolve disputed issues of adjudicative fact raised by the application in accordance with Regulation .04 below, and the Administrative Procedure Act.

F. Upon completion of the factual record on an application, including completion of any adjudicatory hearing, the Board shall schedule a public hearing for the purpose of receiving advice and comment on the application. The hearing shall be conducted in accordance with the procedures set out in Regulation .05 below.

#### Regulation .04 Procedure for Adjudicatory Hearing on an Application.

*COMAR 14.14.03.04*

A. Definitions.

  (1) “Adjudicative fact” means facts which involve a particular party or facility and have no general applicability--for example, the types and quantities of pollutant emissions which one facility will have.

  (2) “Adjudicatory hearing” means a contested case hearing conducted pursuant to the relevant provisions of the Act and the Administrative Procedure Act.

  (3) “Requester” means the person requesting an adjudicatory hearing who seeks to or has become a party to the proceedings, and whose legal rights, duties, statutory entitlements, or privileges are adversely affected by the decision of the Board on an application.

B. Requests for Adjudicatory Hearings.

  (1) Within 50 calendar days from the date of publication in the Maryland Register of the notice of the completed application, persons requesting an adjudicatory hearing shall submit to the Secretary, in writing, specific grounds for their grievances.

  (2) Requesters for adjudicatory hearings shall do all of the following:

    (a) State the name, address, and telephone number of the person making the request;

    (b) Identify the specific rights, duties, statutory entitlements, or privileges of the requester which are adversely affected by the application for which the adjudicatory hearing is requested, and upon which the requester asserts his or her grievance;

    (c) Identify any other person whom the requester represents;

    (d) State separately and specifically the issues of adjudicative fact proposed to be considered at the hearing; and

    (e) Describe the data and information which, if established through relevant and competent evidence at the hearing, would be adequate to justify resolution of the factual issue(s) in the way sought by the person.

C. Board's Consideration of Requests.

  (1) The Board shall consider any requests for an adjudicatory hearing promptly and give notice of its decision to requesters by certified mail. Before an adjudicatory hearing is granted, the Board may request briefs from all requesters on the issue of standing or other threshold issues. The Board or its hearing officer will determine which parties will have standing as to each issue. Any requester may be admitted as a party for limited purposes.

  (2) Requests for an adjudicatory hearing will be granted if the requester has shown all of the following:

    (a) There is a genuine issue of material adjudicative fact for resolution at a hearing. An adjudicatory hearing will not be granted on issues of policy or law or on issues of fact which are of no consequence to the determination of whether or not a certificate should issue.

    (b) The factual issue is capable of being resolved by available and specifically identified evidence. A hearing will not be granted on the basis of mere allegations or denial or general descriptions of positions and contentions.

    (c) The data and information identified in the request for hearing, if established through relevant and competent evidence at a hearing, would be adequate to justify resolution of the factual issue in the way sought by the person. A hearing will be denied if the Board concludes that, even assuming the truth and accuracy of all of the data and information submitted in support of the objection and request for hearings, they are insufficient to justify the factual determination urged.

D. Pre-hearing Conference.

  (1) The hearing officer may hold a pre-hearing conference to determine standing or any other preliminary matters.

  (2) At the discretion of the hearing officer, persons other than parties may attend pre-hearing conferences.

  (3) At a pre-hearing conference or within some reasonable time set by the hearing officer, each party shall make available to the other parties the names of experts and other witnesses the party expects to call, together with a brief written summary of their anticipated testimony.

  (4) At a pre-hearing conference, or within some reasonable time set by the hearing officer, the following matters shall be considered:

    (a) The documents within the Board's file shall be identified.

    (b) Stipulations and admissions of facts and the genuineness of documents and other matters upon which there is agreement shall be identified.

    (c) Matters of which official notice may be taken shall be identified.

    (d) Disputed issues of a purely legal nature shall be identified and submitted by the hearing officer to the Attorney General.

    (e) Disputed issues of policy shall be identified and deferred for consideration until the public hearing held on the application.

    (f) Disputed issues of fact which concern technical matters (plans, specifications, construction drawings, process controls, operation procedures, etc.) subject to determination by the Department in connection with issuance of a facility or discharge permit may be deferred, at the hearing officer's sole discretion, to the Department with the Department's concurrence. Until the resolution of the disputed factual issue by the Department or issuance of necessary permits, the Board shall presume resolution of the disputed fact in a manner consistent with issuance of the certificate. Post-permit review by the Board shall be as set forth in Regulation .07E.

    (g) When possible, consideration shall be given to and decisions made upon objections to the introduction into evidence at the hearing of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by a party. The hearing officer may determine to receive evidence on an issue by issue basis. To the extent possible, parties of like interest in the application shall consolidate the presentation of their cases.

    (h) A schedule of presentation order for the following shall be established:

      (i) Submissions of written statements;

      (ii) Presentation of oral and written statements;

      (iii) Presentation of oral, direct, and cross-examinations;

      (iv) Presentation of oral arguments.

  (5) The hearing officer shall prepare a written pre-hearing order reciting the actions taken at the pre-hearing conference.

E. General Procedure for Hearing. Adjudicatory hearings shall be conducted generally in the following order, unless modified by the hearing officer during the pre-hearing conference:

  (1) Call of the case by the hearing officer;

  (2) Opening statements by the parties;

  (3) Presentation of the case by the applicant and intervenors in favor of the application:

    (a) Direct evidence,

    (b) Cross-examination in an order to be determined by the hearing officer;

  (4) Presentation of the case by opponent or opponents in an order to be determined by hearing officer:

    (a) Direct evidence by the opposition,

    (b) Cross-examination by the applicant or intervenors in favor of the application, or both;

  (5) Written rebuttals to be filed within 3 days of the close of oral testimony:

    (a) Concluding arguments by the applicant and other proponents,

    (b) Concluding arguments by the opponents;

  (6) Concluding arguments shall be heard by a majority of the Board. The Board may also examine witnesses.

F. The party who raises material issues of fact has the burden to present an affirmative case upon the issues. The burden of production on any specific issue may vary between the parties at the discretion of the hearing officer. The hearing officer may issue a summary dismissal of any issue of fact after presentation of a party's case when, even assuming the truth and accuracy of all evidence submitted by that party, it is insufficient to justify the factual determination urged. The applicant has the ultimate burden of persuasion on all factual issues adjudicated.

G. Authority and Duty of Hearing Officer.

  (1) The hearing officer shall have the authority and duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of the proceedings, and to maintain order.

  (2) The hearing officer shall have all powers necessary to these ends, including the following:

    (a) To administer oaths and affirmations;

    (b) To issue summonses for witnesses and subpoenas requiring the production of documents;

    (c) To rule upon offers of proof and receive relevant and material evidence;

    (d) To consider and rule upon all procedural motions and other motions appropriate to the proceedings;

    (e) To examine witnesses;

    (f) To maintain order, limit unduly repetitious testimony, and limit the time for presentations;

    (g) To identify and submit issues of law to the Attorney General;

    (h) To identify and determine appropriate issues of fact to be deferred to the Department;

    (i) To grant a continuance for good cause shown;

    (j) To require parties to submit proposed findings of fact.

H. Parties may cross-examine a witness who appears at an adjudicatory hearing to the extent that cross-examination is necessary for full and true disclosure of the facts. The provisions of the Administrative Procedure Act shall apply to the adjudicatory hearing.

I. In multi-party proceedings, the hearing officer may limit cross-examination to one party on each side if he or she is satisfied that the cross-examination by that party will adequately protect the other parties. Other parties may engage in cross-examination relevant to matters not adequately covered by previous cross-examination.

J. Rulings of the hearing officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters shall be final and shall appear in the record. Parties shall be presumed to have taken exception to an adverse ruling.

K. Record of Adjudicatory Hearing.

  (1) All orders issued by the hearing officer, stenographic notes or tapes, or transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information, and other written matter submitted in the adjudicatory hearing, shall be available to the public in the office of the Secretary upon compilation.

  (2) Adjudicatory hearings shall be either stenographically reported verbatim or tape recorded, and then may be transcribed. Stenographic notes or tapes, or originals of the transcript, shall be filed with the record along with all exhibits.

  (3) The hearing officer shall certify that the stenographic notes or tapes, or transcripts and exhibits are received, and each of the parties shall be so notified by certified mail. Any party who desires a copy of a transcript of the hearing may request a copy from the hearing office and pay the costs. If the transcript is prepared by a private stenographer, the hearing officer may direct interested persons to make arrangements for copies by dealing directly with the reporter.

L. Within 10 calendar days after mailing to the parties notice of certification of the stenographic notes, tapes, or transcript, any party may file with the hearing officer proposed findings of fact and conclusions and a brief in support thereof, each containing appropriate references to the record. A copy of the findings, conclusions, and brief shall be mailed to every other party at the same time. The time for filing may be shortened or extended by the hearing officer only for good cause shown.

#### Regulation .05 Procedure for Public Hearing on an Application.

*COMAR 14.14.03.05*

A. After completion of the factual record for each application being considered, the Board shall schedule a public hearing. The hearing shall be held in the county in which the proposed site is located. If the proposed site is located in two or more counties, the hearing will be held at a location reasonably convenient and accessible to the citizens of all these counties.

B. Notice.

  (1) Notice will be given by:

    (a) Publication at least 15 calendar days in advance in the Maryland Register and one or more newspapers of general circulation in the county or counties in which the proposed site is located;

    (b) Ordinary mail to the governing body of any county in which the proposed site is located and the governing body of every adjoining county and every incorporated municipality within 10 miles of the site; and

    (c) Ordinary mail to any person who has requested to receive notice of Board meetings.

  (2) Arrangements for all legal notices shall be made by the Board at the expense of the applicant.

C. At least a majority of the members of the Board shall be present at the public hearing.

D. The Chairman may be the hearing officer or the chairman may designate another Board member or person as hearing officer.

E. At the public hearing the Board shall:

  (1) Announce any findings of facts which may have been determined in any adjudicatory hearing or by the Department or otherwise in respect to a particular application.

  (2) Receive advice and comments from interested persons as to the suitability of the site in question.

  (3) Receive advice and comment from interested persons on any issues of policy identified by the Board as being presented by the application. Any issues so identified by the Board shall be stated in the public notice announcing the public hearing.

F. The Board may permit the parties to any adjudicatory hearing to present their final arguments at the public hearing or may schedule the arguments at another meeting before the public hearing as time and circumstances permit.

G. The record shall remain open for written public advice and comment for a period to be specified by the Board, but not less than 15 days.

H. The Board may establish procedural rules governing the conduct of hearings, consolidation of hearings, ceding of time, time limits, and other such matters as the Board deems appropriate.

#### Regulation .06 Decision to Issue or Deny a Certificate.

*COMAR 14.14.03.06*

After consideration of information submitted as part of the application, findings of fact determined at any adjudicatory hearing or otherwise, the advice and comments of interested persons, and other relevant information, the Board shall announce its decision to grant or deny a certificate. The Board shall promptly notify by certified mail, the applicant, other parties to any adjudicatory hearings, and the chief executive officer of any municipality within 10 miles of the proposed site and of any affected county of its decision. The Board shall include in the notice its reasons for granting or denying a certificate and shall state the terms and conditions of the certificate.

#### Regulation .07 Form, Terms, and Conditions of Certificate.

*COMAR 14.14.03.07*

A. The certificate shall state the following:

  (1) A statement in large print that it is a Certificate of Public Necessity;

  (2) A citation to the statutory authority for issuance;

  (3) The signatures of the Chairman and the Secretary;

  (4) The effective date and, when appropriate, a renewal date;

  (5) The purpose for which the certificate is issued;

  (6) A description of the site and proposed facility;

  (7) All terms and conditions;

  (8) Any referenced exhibits to be attached or incorporated by reference into the certificate.

B. A complete copy of the certificate including all conditions, shall be prominently displayed by the applicant at the facility, or, before construction, at a location reasonably accessible for inspection.

C. A certificate may be assigned or transferred only with the prior permission of the Board. The Board may require additional information and appearance before the Board.

D. The Board shall impose terms and conditions necessary to assure that a facility and site are consistent with the purpose of the certificate and with the purposes of the Act. These terms and conditions may include but are not limited to:

  (1) The specific geographic area for which the certificate applies;

  (2) A general description of the facility including:

    (a) Facility type,

    (b) Technology to be applied in treating, storing, recycling, or disposing of hazardous waste at the facility,

    (c) Required buffer areas or buffer mechanisms,

    (d) Description of types and quantities of wastes, and

    (e) Transportation routes.

E. During the process of obtaining any other necessary permits, the design and operation of the site or facility may be altered in such a way that it results in significantly different impacts on the site or surrounding community than were considered by the Board in its decision to issue a certificate. If this occurs, the Board shall review the changes and consider their effects. The Board may decide to revoke the certificate or change or impose new terms and conditions on the certificate as specified in§D after such hearings as may be required by law. The decision shall be within the sole discretion of the Board and shall be final. The certificate holder shall be notified as to the effectiveness of the certificate within 3 weeks after the issuance of these permits.

### Chapter 04 — Enforcement of Certification

**Authority:** Natural Resources Article, §3-704, Annotated Code of Maryland

**Administrative History:** Effective date: May 29, 1981 (8:11 Md. R. 976)

#### Regulation .01 Monitoring and Enforcement of Terms and Conditions.

*COMAR 14.14.04.01*

A. The Board shall enter into agreements with the Department or other appropriate governmental agencies for the monitoring of compliance with the terms and conditions of any certificate. Evidence of violations received by the Board shall be referred to the appropriate enforcement agency.

B. In the certificate, the Board shall, to the extent feasible, identify the agency or agencies responsible for monitoring and enforcement activities.

#### Regulation .02 Revocation of Certificate.

*COMAR 14.14.04.02*

A. It shall be the policy of the Board that reasonable efforts shall be made to resolve complaints or violations in a manner which encourages voluntary compliance and full cooperation with all parties. However, if the frequency, pattern, or type of complaint or violation is of serious concern to the Board, or upon the request of any appropriate federal, State, or local government or agency, the Board may revoke a certificate.

B. The revocation process shall include the following procedural elements:

  (1) The Board shall notify the certificate holder of its concern by certified mail. The notice shall state that the Board is considering possible revocation proceedings and shall direct that the certificate holder show cause why these proceedings should not be initiated. The certificate holder shall have 15 calendar days from receipt of the letter to respond.

  (2) Upon receipt of the response from the certificate holder or if no response is given, the Board may decide to:

    (a) Take no further action;

    (b) Hold an adjudicatory hearing pursuant to the requirements of the Administrative Procedure Act to consider revocation of the certificate or imposition of additional terms or conditions on the certificate holder.

#### Regulation .03 Renewal of Certificate.

*COMAR 14.14.04.03*

A. A certificate which contains a time limit on the life of the certificate shall be renewed by the Board for an appropriate term after the following:

  (1) A public hearing is conducted at which the applicant and public may present evidence and testimony concerning the renewal.

  (2) A review is conducted by the Board which includes consideration of the:

    (a) Continued need for the facility;

    (b) Quality of operation of the facility; and

    (c) Compliance with the conditions of the certificate.

B. The Board may renew the certificate without change or may amend the certificate as appropriate.

C. The Board may not revoke or refuse to renew the certificate unless the procedure for revocation in Regulation .02 is followed.

### Chapter 05 — Treatment and Disposal Needs for the State

**Authority:** Natural Resources Article,§3-704; Article 41,§248; Article 76A,§2(a), Annotated Code of Maryland

**Administrative History:** Effective date: December 21, 1981 (8:25 Md. R. 1997)

**Administrative History:** Chapter revised effective September 26, 1983 (10:19 Md. R. 1692)

#### Regulation .01 Findings.

*COMAR 14.14.05.01*

A. Hazardous Waste Generation and Disposition in 1981-1982.

B. Hazardous Waste Management Alternatives.

  (1) Reduction, Recovery, and Reuse. The Board finds that the reduction of hazardous waste generated and the recovery, re-use, or exchange of hazardous waste are generally preferable to either the treatment or burial of hazardous wastes. The Board recognizes, however, that the waste generator, not the Board, is the key party in implementing reduction, recovery, or re-use. The Board can therefore only endorse and support reduction, recovery, and re-use practices and the implementation of policies or incentives that make them more likely to be employed. The Board notes that reduction, recovery, and re-use are likely to broaden in capability and improve in efficiency under encouraging regulatory and economic conditions, and that in the future less waste would then require treatment, or burial or other long-term storage.

  (2) Treatment. The Board finds that total dependence on treatment, including aqueous treatment, incineration, or other techniques that reduce the hazard or volume of a waste, is not feasible at this time. The Board notes that some existing techniques are being improved and new techniques are being developed, and that in the future more wastes will be capable of being treated. The Board finds that treatment facilities to reduce the hazard or volume of residue or waste that would otherwise be buried are desirable additions to the options available in Maryland.

  (3) Disposal. The Board finds that ultimate or indefinite disposal by burial or long-term storage of certain hazardous wastes, including residues from treatment processes, are the only feasible alternatives for many Maryland wastes even though burial is the means of disposition generally least preferred by the Board.

C. Hazardous Waste Treatment and Disposal Needs Projections.

  (1) The Board finds that hazardous waste treatment and disposal needs depend upon the types and quantities generated as influenced by economic conditions, prices and availability of disposition services, and policies of state and federal governments.

  (2) The Board notes the following facts concerning specific types and quantities:

    (a) Overall changes in actual generation of hazardous waste since 1980 have been small since previous findings based on calendar year 1980. Significant increases in hazardous waste generation are unlikely. The quantity of hazardous waste generated per year is likely to decrease with time.

    (b) On-site disposition is likely to continue in its present pattern. Waste now being treated or disposed of on-site is not likely to become a significant off-site demand. The large reduction in on-site disposition between calendar year 1980 and the August 1981 to July 1982 period was due largely to regulatory decisions that certain wastes were not hazardous. Shifts from on-site to off-site demand appears to be less than 10 percent of the total off-site demand.

    (c) Most of the 41,000 tons of hazardous waste exported in 1981-1982 is likely to remain in the State if treatment or disposal facilities are available.

    (d) Oils and solvents are sufficiently valuable that with few exceptions industry will return them to useful purposes. The recovery or use of oil and solvents as fuel may become subject to increased regulation in the future and more oils and solvents may require capacity in treatment facilities.

    (e) The Board notes that the Maryland Environmental Service's Hawkins Point Hazardous Waste Landfill, assuming issuance of a new facility permit, is estimated to provide burial capacity for The Allied Corporation's hazardous waste for approximately 8 years. The Hawkins Point Landfill, assuming issuance of a new-facility permit and favorable circumstances, could provide burial capacity for the general industrial community's hazardous waste for approximately 10 years. Under unfavorable circumstances the capacity available to the general industrial community could be significantly less than 5 years.

    (f) The Board finds that manifests recorded 79,000 tons imported in 1981-1982, and that this demand could continue or increase in the future.

  (3) The Board finds that the following quantities and types of waste make up a reasonable estimate of the Maryland annual disposal demand. This estimate includes primary industrial generation, residues from waste treatment, shifts from on-site to off-site disposition, changes in disposition methods as a result of anticipated policy changes, and waste exported in 1981-1982 that was assumed to remain in the State in the future. The estimate does not include imported waste. The quantities and types of waste are:

    (a) Wastes in which water is a major component, and which may be neutralized, detoxified, or otherwise treated: 87,000 tons;

    (b) Wastes of primarily organic make-up which could be managed in a variety of ways, one of which may be incineration; 13,000 tons;

    (c) Wastes which will not burn and are not otherwise amenable to treatment to eliminate their hazardous nature, for which secure land burial is the appropriate means of disposal: 169,000 tons.

D. Hazardous Waste Landfill Need.

  (1) Total Landfill Capacity.

    (a) Noting that some out-of-State hazardous waste and some non-hazardous waste may be received at a landfill, that the data base itself has inherent uncertainties, and that some flexibility is required, the Board hereby finds that the State's annual hazardous waste landfill disposal capacity need is 200,000 tons per year.

    (b) The Board notes that landfill capacity is needed as the disposal method for those wastes of unreactive or undecomposable character for which alternative technology has not been developed or for which a treatment facility has not been built.

    (c) It should also be noted that most waste treatment methods produce a waste which must be landfilled.

  (2) Number of Landfills. The Board finds that a single landfill offers economy of scale but that multiple facilities offer price competition and an increased overall system reliability, which would permit the closing of one landfill without destroying the ability to dispose of waste safely. Multiple landfills will also reduce the impact on a single area. The Board, therefore, finds a need for a total of either two or three secure landfills in the State.

  (3) Capacity of Individual Landfills. The Board finds that any general purpose hazardous waste landfill should have a total capacity of at least 5 years of the total Maryland hazardous waste generation designated for landfill, and should be designed for a yearly burial of at least 50 percent of Maryland hazardous waste generation suitable for landfill.

  (4) Landfill to Meet Special Needs. The Board also recognizes that there may be a need for a smaller hazardous waste landfill in an area which is convenient to a single hazardous waste generator or group of hazardous waste generators and which meets their special disposal needs.

E. Incineration Need.

  (1) The Board finds that incineration of certain, primarily organic, materials is an alternative to landfill disposal. The Board finds that incinerator capacity in Maryland is presently insufficient to treat the estimated 13,000 tons per year in the incinerable category generated in Maryland but that unused capacity is available a short distance away, in New Jersey and at other locations in the United States. The Board believes that incineration may offer net benefits in spite of the fact that only a small fraction of the waste is incinerable and that the cost of incineration is very high. The Board also finds that incineration is not entirely without risk. For treatment of some types of waste, incineration involves fewer short-term risks than alternative treatment methods, while burial involves irrevocable use of land and long-term risks. The Board notes that “incinerable” means that the substance can be decomposed by fire, not necessarily that the substance will support combustion.

  (2) The Board finds that due to the high cost of incineration, alternative management techniques (reduction, re-use, exchange, innovative treatment) are likely to reduce the quantity of waste in the incinerable category. The Board also notes that without a categorical prohibition against disposing of incinerable wastes in landfills, a generator is free to choose between two very differently priced alternatives.

  (3) The Board therefore finds, in view of the quantities and circumstances involved, that large-scale incinerator capacity is not crucial to the State's management needs in the immediate future. It appears unlikely that the market will attract the investment necessary to build a major incinerator as described in Regulation .02E.

F. Aqueous Treatment Facilities Need. The Board notes the existence of two facilities in Maryland capable of treating hazardous wastes of which water is a major component. The Board recognizes, however, that competition will provide economic benefits to hazardous waste generators, and that existing facilities may not provide all the services needed by Maryland generators. The Board finds that additional treatment capacity and capability is desirable.

G. Facility Location. The Board finds that most of the hazardous waste generated in Maryland originates in the Baltimore area, although nearly all areas of the State contribute some hazardous waste. The Board wishes to minimize, consistent with other considerations, the expense and risk to the general public of long distance transport of hazardous materials. Therefore the Board finds that the disposal needs will best be met through facilities whose location takes into account these concerns.

H. Special Needs. The Board finds that a role may exist for special purpose facilities capable of, for instance, consolidating small lots of solvent for recovery or small lots of waste for treatment, or for satisfying landfill needs as outlying locations and/or of magnitudes different from those determined above. Other treatment facilities (such as evaporation or stabilization) designed to reduce the hazard or volume of the waste to be landfilled represent a desirable addition to the available treatment/disposal options.

#### Regulation .02 Implementation.

*COMAR 14.14.05.02*

A. Waste Reduction and Recovery. The Board encourages applicants to propose measures in their applications which can be reasonably expected to reduce or eliminate waste quantities or to recover wastes.

B. Conditions. The Board may impose conditions on any certificate of public necessity which expedite, enhance, or enforce the more preferable alternatives and minimize reliance on the less preferable alternatives. These conditions shall be imposed in cooperation with the Maryland Department of Health whenever possible.

C. Landfill.

  (1) The Board will consider applications for secure hazardous waste landfills designed to have a total capacity of at least 5 years of Maryland's annual landfill need (200,000 tons) determined to exist by Regulation .01D, and an annual burial capacity of at least 50 percent of the annual landfill need.

  (2) At the present time, the Board will approve not more than two applications for landfills for general commercial use.

D. Exchange, Recovery, and Transfer Facilities. The Board will consider applications for facilities that will promote waste recovery and the more efficient use of other recovery or treatment facilities.

E. Specialty Units. The Board will consider applications for aqueous treatment or incineration units intended to meet particular needs or to serve specific groups of Maryland generators identified in the application.

F. Aqueous Treatment Facility. The Board will consider an application for one broad-capability aqueous treatment facility.

G. Incinerator Facility. The Board will consider an application for one major incinerator facility.

H. Captive Facilities. The need and priority of a “captive” (generator-owned) facility, either on-site or off-site, will be judged according to its importance to the generator and the extent to which the facility affects or serves the overall needs of the State.